[2024] KECA 1432 (KLR)

Lordship Africa Ltd v Nairobi City County (Civil Appeal 93 of 2019) [2024] KECA 1432 (KLR) (11 October 2024) (Judgment)

Neutral citation: [2024] KECA 1432 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal 93 of 2019

S ole Kantai, F Tuiyott & PM Gachoka, JJA

October 11, 2024

Between

Lordship Africa Ltd

Appellant

and

Nairobi City County

Respondent

(Being an appeal from the Judgment of the High Court of Kenya, Judicial Review Division at Nairobi (Mativo, J.) dated 22nd January 2019 and delivered on 28th January 2019 (P. Nyamweya, J.) in JR. Appl. No. 210 of 2018 Miscellaneous Application 210 of 2018 )

Judgment

1. Desirous of developing approximately 14,000 housing units in seven (7) sites or estates within the City of Nairobi, the County Government of Nairobi (NCC or the respondent) invited parties to bid for various lots for redevelopment of old housing estates under joint venture. The Requests For Proposals (RFP) were published in September 2015 by NCC pursuant to powers under the Urban and Cities Act, 2011.

2. In a letter of 29th September 2016 headed Notification of Award, NCC informed Lordship Africa Limited (the appellant or Lordship Africa) that it had recommended Lordship Africa for the award of tender subject to negotiation and contract formation. The contract was never concluded and on 4th April 2018, NCC informed Lordship Africa that the tender had been cancelled and the Letter of Notification of Award annulled.

3. This aggrieved Lordship Africa who moved the High Court in its Judicial Review jurisdiction seeking the following orders:-1. That leave be granted to the applicant to apply for a declaration that the Nairobi Civil County’s (“NCC”) decision contained in its letter dated 4th April 2018 addressed to the applicant is unlawful and contravened the applicant’s right to fair Administrative Action Act, 2015. 2.That leave be granted to the applicant to apply for an Order of Certiorari to bring before this Honourable Court and quash the NCC’s decision contained in its letter dated 4th April 2018 addressed to the applicant.3. That leave be granted to the applicant to apply for an order of Prohibition prohibiting the NCC from purporting to cancel and/or annul the award of the tender to the applicant either as it has purported to do or at all.4. That leave be granted to the applicant to apply for an order of mandamus directed at the NCC tonegotiate with the applicant a joint Venture Agreement in terms of the said Tender.5. That the grant of leave herein do operate as a stay of the cancellation of award of the Tender to the applicant as well as the re-advertised tender including the award negotiation, signing and/or performance of any joint venture agreement pending the hearing and determination of this Judicial Review Application.6. That costs of this application be provided for.

4. After leave was granted, Lordship Africa filed a substantive motion for reliefs in tandem with the permission that was given.

5. In the statutory statement filed in support of the application for leave and the affidavit of Jonathan Jackson sworn on 24th May 2018, it is deposed that in response to requests for clarification from various potential bidders, NCC issued an addendum pursuant to clause 3. 7, amending the RFP thus:-“3. 7Amendment of Bid Documents3. 7.1At any time prior to the deadline for submission of bids, NCC may, for any reason, whether at its own initiative or in response to a clarification requested by a Qualified Partner, modify the bid documents by issuing an addendum.3. 7.2Any addendum will be notified in writing or by cable, telex or facsimile to all prospective Qualified Partners who have been invited to bid and will be biding upon them.3. 7.3In order to allow prospective Qualified Partners reasonable time in which to take the addendum into account in preparing their bids, NCC may, at its discretion, extend the deadline for the submission of bids.”

6. After the applicant duly accepted the award, it commenced negotiations with the parties with their respective legal representatives discussing the terms of the proposed Joint Venture Agreement (JVA) which culminated in the signing of the Heads of Terms. The negotiations over the terms of the JVA continued over the course of 2016, the main sticking point revolving around the project site and title to the site. In addition, NCC kept changing its legal advisers shifting from Messrs. JJ Malonza, to Messrs. Kithi & Company then to Mr. Simiyu and back to Messrs JJ Malonza, making it difficult for Lordship Africa to track and monitor progress as various drafts went back and forth with settled matters being reintroduced upon entry of new advocates. So, Lordship Africa alleged.

7. After a period of silence, lasting from the end of 2016 until after the August 2017 elections, NCC invited all developers to a meeting in which it informed them that there would be new conditions and terms for the JVA. In December 2017, Lordship Africa was contacted for a meeting with NCC to discuss completely new terms for the JVA, a meeting that did not take place. Lordship Africa came to learn that NCC wished to impose new terms, substantially and fundamentally different from the terms of the original bid.

8. In mid-February 2018, Mr. Jackson wrote to NCC and confirmed Lordship Africa’s willingness to sign the JVA and asking NCC to appoint a lawyer with whom they would discuss. Lordship Africa contended that it was surprised by the contents of a letter from NCC dated 4th April 2018 informing it that the letter of award had been cancelled. It asserted that section 68 of the Public Procurement and Disposal Act does not authorize the said actions of NCC either as claimed or at all. Second, as NCC had not obtained title to the land, the stipulated 28 days’ period had not begun to run and NCC could not invoke Clause 3. 26 of the RFP. In the next twist of a quickly developing tale, NCC re- advertised the Ngong Road Tender on the next day with only one party responding, Erderman Property Limited (EPL). At the time Mr. Jackson was making the affidavit, NCC was actively in the process of concluding a contract with EPL and it was plain to Lordship Africa that NCC was determined to hand over the entire Ngong Road project to EPL unlawfully and without due process.

9. In answer, Dr. Patrick Mwangangi swore an affidavit on 27th August 2018 on behalf of NCC. At the time of making the affidavit, he was the Head of County Supply Chain at NCC. He explained that the procurement process adopted by NCC for the development was a two-stage tender process involving calling for Expression of Interest from bidders to show interest in participating in the project and upon evaluation, qualified companies would be shortlisted and issued with the RFP to competitively bid at stage two.

10. In this regard a consortium comprising Lordship Africa, China Wu Yi Company Limited and Scope Designs System (SDS) was prequalified to proceed to the RFP stage. Just before submission of the RFP, Lordship Africa informed NCC that China Wu Yi Company had withdrawn its membership from the consortium and so the RFP was submitted by a consortium comprising of Lordship Africa and SDS. There was further disintegration of the consortium. Via a letter of 7th July 2016, Lordship Africa introduced an architect from Turkey to work on the project to replace SDS without getting express authorization and consent of NCC as per Clause 11 of the Joint Bid Agreement. Further still, Lordship Africa caused incorporation of a special purpose vehicle (SPV) known as Azile Limited to undertake the implementation of the project having sidelined SDS. This caused a rift between SDS and Lordship Africa which escalated into litigation, being High Court Civil Suit No. 964 of 2017.

11. Dr. Mwangangi explained that NCC called for bidding as a consortium because of the nature of work needed on the project, the expertise required and the colossal sum of funds involved. The Joint Bidding Agreement (JBA) required that the role of each member of the consortium be specified and a declaration that all consortium members would be jointly and severally liable for execution of the project as per the terms of the JVA. Clause 11 of the JBA provided that all consortium members would expressly undertake not to sign or delegate their rights, duties or obligations under the contract except with prior written consent of NCC and that the provision of the JBA would not be amended or modified except in writing signed by each party and with prior written consent of NCC.

12. Lordship Africa is assailed for violating various provisions: contrary to section 2. 3.5(f) of the Expressions of Interest, it arbitrarily removed consortium members and formed an SPV; it breached sections 2. 4.1 (a) – (d) of the Expression of Interest which stipulated the conditions under which change in consortium membership would be terminated during the qualification stage; Lordship Africa violated section 2. 4.2. which spelt out that a change in the consortium membership required approval by NCC at its sole discretion and the approval would be in writing; and the consortium failed to submit revised form of the JBA as required under section 2. 4.3.

13. In a rejoinder, Lordship Africa, through a further affidavit sworn by Jackson on 8th October 2018, reiterated that the subject of challenge before the High Court was the decision communicated to it vide the letter of 4th April 2017. The deponent asserted that contrary to what Dr. Mwangangi deposed, nothing in the RFP required bidding by a consortium, rather Clause 3. 2.2. contained specific stipulations if the parties elected to bid as a consortium which included that: members would identify one of them to be designated as lead member who would be authorized to give and receive instructions for and on behalf of any or all the parties of the joint venture, and the execution of the contract, the JBA be executed by members of the consortium; and a prescribed power of attorney be executed authorizing the lead member to act on behalf of the consortium. Lordship Africa was the lead member and that it had neither sought to nor excluded SDS. He explained that Lordship Africa as the lead member took up negotiations of the terms of the Joint Venture Agreement with NCC and SDS having no role in the matter. He deposed that it was in the course of preparations of the draft JVA that it was suggested that the JVA be between two nominee companies and Lordship Africa for two phases of the project, a suggestion that was quickly abandoned. Regarding the litigation between it and SDS, Lordship Africa contended that, assuming it to be competent and well-founded, the litigation was not about the disintegration of the relationship between it and SDS but the scope of SDS’ rights under the JBA.

14. Before us, Lordship Africa submitted that the NCC’s impugned decision was illegal and unjustified under section 68 of the Public Procurement and Asset Disposal Act, 2005. That the reliance on the said provision in the impugned decision was not challenged by the NCC and it was only Lordship Africa who addressed and challenged its reliance in the judicial review proceedings more particularly addressing it at Ground No. c(i) of the Chamber Summons application, Ground No. 3(a) of the Statutory Statement, paragraph 15(a) of the Verifying Affidavit, Ground No. (c) a. of the Substantive Motion and paragraph 4. 2 to 4. 12 of its written submissions. Further, the learned judge similarly did not interrogate this ground as raised by Lordship Africa nor made a determination therein in the judgment and applied the Public Procurement and Asset Disposal Act, 2015 to determine the judicial review. It is contended that the omission by the NCC and the learned judge to address the cancellation and nullification under section 68 of the 2005 Act is material as the corresponding provision in the 2015 Act concerns “procurement for records” which neither applied then nor now. Lordship Africa argued that in relying on section 68 of the 2005 Act as a basis for the cancellation and nullification, NCC applied a provision in a repealed statute as justification for its actions. On the issue of the effect of a repealed statute Lordship Africa referred us to the decision in National Social Security Fund Board Trustees & Others v Central Organization of Trade Union (K) [2015] eKLR cited with approval in Cooperative Bank of Kenya Limited v Yator (Civil Appeal 87 of 2018) [2021] KECA 95 (KLR). Lordship Africa took a view that section 68 of the 2005 Act did not exist and was therefore unenforceable and incapable of being applied by NCC and hence amounted to an illegality and irrationality which were grounds for judicial review as stated in Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 approved in Republic vs Public Procurement Administrative Review Board & Another Ex parte Intertek Testing Services (EA) Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & another [2022] eKLR.

15. Lordship Africa contended that illegality arose in following ways:a.NCC’s citation and reliance of a provision in a repealed legislation is an error of law.b.Section 68(2) of the 2005 Act only provides that “The written contract shall be entered into within the period specified in the notification under section 67(1) but not until at least fourteen days have elapsed following the giving of that notification”. None of which had occurred. The notification did not contain any timeline for the written contract to be executed and no contract was executed by the parties within fourteen (14) days of the Notification.

16. On the second issue, Lordship Africa submitted that the decision to cancel the Ngong Road RFP and annul the Notification under Clause 3. 26. 6 was irrational and procedurally improper in that; the clause provides that the failure by the appellant to enter into a JVA within the stipulated period shall constitute sufficient grounds for the annulment of the notification, yet the clause does not state the length of the stipulated period which if exceeded would entitle the NCC to exercise its discretion as it did in the impugned decision; the other provisions were unclear as the period within which Lordship Africa was to enter into a JVA and since there was none the other clauses in the JVA it could not apply; and lastly, the timeline for the execution of the JVA was clarified in Addendum No. 2 under performance security, however NCC did not reach the milestone of availing the land titled to enable the start of the project and as such erred in invoking clause 3. 26. 6 as the justification for its decision as the time did not start to run at all.

17. On the final issue, the appellant submitted that the learned judge went beyond the scope of the dispute as framed by Lordship Africa by raising an issue for determination, whether the judicial review offended the doctrine of exhaustion of available remedies. It was contended that NCC did not raise this as a ground for challenging the judicial review proceedings and relied on the case of Dakianga Distributors (K) Ltd vs Kenya Seed Company Limited [2015] eKLR. The learned judge is faulted for failing to consider Lordship Africa’s written supplementary submissions on the issue of exhaustion under section 167 of the 2015 Act. It is argued that the Public Procurement Administrative Board lacked the jurisdiction to hear and determine the matter as the procurement process had already been completed by the time of the cancellation of the RFP and annulment of the award as communicated through the impugned decision. Therefore, the Board was no longer seized of jurisdiction and the dispute between the parties was not a procurement dispute. That further, Lordship Africa was barred from commencing proceedings before the Board by dint of section 167(4)(b) of the 2015 Act. The learned judge however cited section 63 of the 2015 Act as the basis for the annulment of the Notification. It is submitted that the said provision could only apply to the circumstances of the cancellation of the Ngong Road RFP and annulment of the Notification. These two sections therefore vested the Honourable Court with the jurisdiction to hear and determine the dispute.

18. As to the High Court’s finding that NCC was guilty of material non-disclosure for failing to disclose to court the existence of HCCC No. 464 of 2017 (filed against the Lordship Africa by SDS), Lordship Africa submitted that this finding was erroneous as the same was raised as an after-thought by the NCC in a replying affidavit and written submissions and furthermore, the suit was filed prior to the cancellation of the award. That the alleged breaches ought to have been communicated to Lordship Africa by NCC in the course of the consultative and negotiation meetings or in the impugned decision and the omission is therefore a clear breach of section 4 of the Fair Administrative Actions Act, 2015.

19. In response NCC argued that Lordship Africa did not place any material before the superior court to suggest that the impugned decision was either unreasonable or irrational. The learned judge was applauded for finding that on a proper construction of the impugned decision, the bid documents and the relevant statutes left no doubt that the impugned decision was legal and in conformity with the bid documents and terms. Further, the evidence before it that the Consortium that had won the bid having being disintegrated, the basis upon which Lordship Africa stood collapsed. It was submitted that the learned judge rightly determined that the NCC’s decision was rationally connected to a lawful process, that is, enforcing the provisions of the RFP which clearly stipulated that bidders were to submit bids as a consortium and went a step further to define a consortium. Lordship Africa was therefore faulted for advancing an argument that it was competent to proceed with the tender alone by reconstituting a new consortium different from the one that won the bid. Further, in agreeing with the court’s finding, NCC asserted that a judicial review court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the body and it will also not interfere unless it is clear that the choice preferred is at odds with the law. For this argument the decision of Chaskalson P, in Pharmaceutical Manufacturers Association of SA and Another: in re Ex-parte President of the Republic of South Africa and Others 2000 (4) SA 674 (CC) where the test for rationality was discussed is cited.

20. NCC further submitted that a decision suffers from procedural impropriety if in the process of its making, the procedures prescribed by the statute are not followed or if the rules of natural justice are not adhered to. NCC contended that it complied with the issuance of sufficient notice, gave reasons for termination and made a decision that was not only legal but rational and also appropriate under the circumstances.

21. On the issue of whether the legitimate expectation of Lordship Africa was violated, NCC submitted, identifying with the court’s finding, that legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken. In adjudicating legitimate expectation claims, the court will follow a two-step approach, firstly, whether the administrator’s actions created a reasonable expectation in the mind of the aggrieved party and secondly, whether that expectation is legitimate. Only if the answer to the two questions is in the affirmative can the court hold the administrator to the representation. In addition, the said representation itself must be precise and specific and importantly lawful and once a reasonable expectation exists the administrator is required to act in accordance with the expectation, except if there are public interest considerations which outweigh the individuals’ expectations. On this, NCC relied on H.W.R Wade & C.F. Forsyth at pages 449 to 450. The respondent further contended that the learned judge found that, whereas Lordship Africa argued that it had legitimate expectations that upon submitting its bid it would proceed to complete the Joint Venture Agreement with the respondent, it is equally true that the signing of the contract rested on other requirements, one of them being that the contract was to be awarded to a consortium. Therefore, since Lordship Africa is the only surviving member of the consortium that won the bid, the court rightly found that in itself took away its legitimate expectations if at all it existed. Also, attempting to introduce changes such as adding a new member to an already dead consortium without the consent of NCC offended the bid terms and amounted to breach on the part of Lordship Africa. Any valid legitimate expectation could only arise after the tender terms were fully complied with.

22. On the issue of material non-disclosure, NCC submitted that it revealed to the superior court that Lordship Africa had failed to disclose the existence of a civil suit between it and SDS who were part of the Consortium and that Lordship Africa could not insist on proceeding with the contract as the sole surviving partner in the Consortium. This fact was only admitted by the Lordship Africa after the revelation. NCC is contented with the learned judge’s holding that any person who approaches the court or a tribunal for grant of relief is under a solemn obligation to candidly disclose, at the earliest opportunity possible, all material and important facts/documents that have a bearing on the adjudication of the issues raised.

23. Finally, NCC argued that the court ought not to grant the reliefs sought in this appeal as the discretionary nature of judicial review remedies means that even if the court finds a public body has acted wrongly, it does not have to grant any remedy and will not exercise its discretion where the applicant’s own conduct has been unmeritorious or unreasonable, where the applicant has not acted in good faith or where the judge considers that an alternative remedy could have been pursued. That Lordship Africa is seeking to enforce a procurement process yet the Consortium that bided no longer exists, yet the intention of the parties was clear from the bid documents and tender terms that the bid was awarded to a Consortium and not a single entity because of the nature and scope of works and the expertise required and the court must restrict itself to those original terms.

24. Early in the lengthy judgment, the learned trial Judge observed:-“43. A casual look at the ex parte applicant’s case shows that it is aggrieved by cancellation of a Tender, a procurement process falling under the provisions of the Public Procurement and Assets Disposal Act [39] and the Regulations. To be specific, it falls within the ambit of section 167 of the Act. That is the nature of Dispute before the Court. No amount of coloring can change the pith, substance and character of the case.”

25. The Court then proceeded to make the following finding:-“49. In view of my analysis and the determination of the issue under consideration herein above, it is my conclusion that the ex parte applicant ought to have exhausted the available mechanism before approaching this court. I find that this case offends section 9(2) of the Fair Administrative Action Act.[43] Second, the ex parte applicant has not satisfied the exceptional circumstances requirement under section 9(4) of the Fair Administrative Action Act.[44] Consequently, I find and hold that this suit offends the doctrine of exhaustion of statutory available remedies. It must fail. I dismiss it on this ground.”

26. Even before considering the merit of those holdings, we must determine whether it properly arose for consideration before the High Court as one of Lordship Africa’s grievances is that the issue on the doctrine of exhaustion was not a ground for challenge of the judicial review proceedings. We are invited to find that both the parties and the court were bound by the pleadings and documents filed.

27. It is true, looking at the motion for review and the affidavit filed in support and reply to the motion that the doctrine of exhaustion was not raised. It first arises as a matter of law set up by NCC in its written submissions dated 27th August 2018. Lordship Africa then filed supplementary submissions to respond to this point of law. In those latter submissions, counsel for Lordship Africa was happy to make counter arguments and does not for a moment complain that the doctrine is not pleaded.The issue raised was one of law which Lordship Africa embraced as one properly arising and proceeded to make an exhaustive rejoinder to it. It was a matter that the trial Court was invited to determine and could not ignore. Indeed, it was obliged to settle it. These are the circumstances that are contemplated in the old decision of Odd Jobs vs Mubia [1970] EA 476 where Law JA held that:-“On the point that a court has no jurisdiction to decree on an issue which has not been pleaded, the attitude adopted by this court is not as strict as appears to be that of the courts in India. In East Africa the position is that a court may allow evidence to be called, and may base its decision, on an unpleaded issue if it appears from the course followed at the trial that the unpleaded issue has in fact been left to the court for decision.”

28. The grievance by the Lordship Africa is coming too late and we find no justification to uphold it.

29. The law applicable at the time of the impugned termination was the Public Procurement and Asset Disposal Act (Act No. 33 of 2015. Section 167 on Request for a Review reads:“167. (1)Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may 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.2. A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract.3. A request for review shall be heard and determined in an open forum unless the matter at hand is likely to compromise national security or the review procedure.4. The following matters shall not be subject to the review of procurement proceedings under subsection (1)—a.the choice of a procurement method;b.a termination of a procurement or asset disposal proceedings in accordance with section 62 of this Act; andc.where a contract is signed in accordance with section 135 of this Act.”

30. The first argument made by Lordship Africa is that the notification of award had been made on 29th February 2016 and the procurement process had been completed by the time the cancellation of the RFP and annulment of the award was communicated on 4th April 2018.

31. As we have understood it, the procurement process adopted by NCC was a two stage tender process. The first, and this brooks no uncertainty from the language in section 11 of the Tender document, is the Request for Proposal (RFP) under Clause 3. 25. 1.The contents of the Notification of award are important and we reproduce the short letter of 29th February 2016:“office Of The GovernorCounty Secretary AndHead Of County Public ServiceNCC/T/SS&H/098/2015-201629th February 2016M/s Consortium Lordship Africa & China Wuyi Co. Ltd & Scope Design System,Box 47655-00100, Nairobi, KenyaRe: Tender No. Ncc/t/ss&h/098/2015-2016 – Lot 2 Ngong Road – Redevelopment Of Old Housing Estates Within Nairobi City County Under Joint Vernture Partnership- (JVP)Notification Of AwardI write to inform you that the Nairobi City County Government has recommended you or award of tender number NCC/T/SS&H/098/2015-2016 Redeveloipment ofOld Housing Estates Within Nairobi City County Under Joint VenturePartnership(KJVP) – subject to negotiation and contract formationYou are hereby invited for an entry meting to be held on Wednesday 2nd March, 2016 at 2. 00pm Nairobi Time at the Committee Room City Hall Nairobi, Kenya.Your attention is particularly drawn to the provisions of the General Conditions of Contract and Special Conditions of Contract in respect of quality Compliance, timely performance and other general and special conditions as stipulated int eh tender/bid documents.SignedDr. Robert Ayisi,MBS. AG. County Secretary.”

32. The words of the letter speak for themselves. NCC was informing Lordship Africa that it had recommended Lordship Africa for the Award subject to negotiation and Contract formation. The award letter signified the end of the first stage of the tender process.

33. The second stage involved negotiations into the terms of the proposed Joint Venture Agreement, a process which, as Lordship Africa correctly concedes, began and continued over the course of 2016 but was never concluded. It is therefore common ground that the letter of termination by the letter of 4th April 2018 came before the signing of a Joint Venture Agreement between the parties. We take a view that as the second stage of the procurement process had not been completed, then the dispute that was triggered by the letter of termination would not be of any other character other than a procurement dispute.

34. The second argument by Lordship Africa is pegged on the provisions of section 167(4)(b). Currently, the provisions read:-““(4)The following matters shall not be subject to the review of procurement proceedings under subsection (1)—a.the choice of a procurement method;b.a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; andc.where a contract is signed in accordance with section 135 of this Act.”

35. This is after the amendment of the subsection which was introduced by Act 33 of 2022 which deleted and substituted section 62 with section 63. So that at the time material to this dispute section 167(4)(b) made reference to section 62. The amendment was necessary because, so as to be of some meaning, section 167(4)(b) needed to refer to section 63 on termination or cancellation of procurement and asset disposal proceedings and not section 62 which was on declaration not to engage in corruption. It is against this background that we discuss the second argument by Lordship Africa. It is its contention that it was barred from commencing proceedings before the Review Board by dint of section 167(4)(b) and that the learned trial Judge appreciated that it was section 63 that was the basis of the annulment of the notification.

36. But we think otherwise because a holistic reading of the entire impugned decision shows that although section 63 is cited, the Judicial Review Court did not make a finding that those were the provisions under which termination happened. In particular, in paragraphs 59 to 75, the Judge discusses the effect of the two members of the consortium withdrawing or being left out of the consortium on the entire tender process and concludes:-“75. I have carefully examined the impugned decision. There is nothing to show that a reasonable body, faced with the same set of facts and the law would have arrived at a different conclusion. In other words, applying the above tests of unreasonableness and irrationality, I find that the ex parte applicant has not demonstrated that the decision was tainted with unreasonableness or irrationality. The decision is rationally connected to a lawful process, that is, enforcing the provisions of the Request for Proposal which clearly stipulated that the bidders were to submit bids as a consortium, and went a step further to define a consortium. The sole purpose of this requirement is to ensure that the work because of its nature is handled by a consortium as opposed to a single entity. The ex parte applicant submitted its bid as a consortium. It cannot now be heard to advance the argument that it is competent to proceed with the tender alone by reconstituting a new consortium different from the one that won the bid. The changes fundamentally altered its character to its detriment. On this ground, this case must fail.”

37. We do not perceive that NCC terminated the tender process before completion of the second stage for any of the reasons spelt out in section 63 of the statute. It is also our further finding that the dispute that was triggered by the termination in the letter of 4th April 2018 was one that should have been referred to the Review Board by dint of the provisions of section 167 of the Act. Never mind the language of the Judicial Review application, the gravamen of the grievance by Lordship Africa was that because of the termination letter, it was likely to suffer or risked suffering loss or damage due to a breach of duty imposed on NCC as a procuring entity. So as the alleged breach, it bears repeating, was in the course of the second stage of the procurement process, the Review Board would have been seized of all facets and complexions of the dispute in respect to the termination, be they of fact or law, including whether the correct provision of statute was invoked by NCC and if the termination run afoul the tenets of fair administrative action.

38. In the end we endorse the finding of the learned Judge that the Judicial Review proceedings offended the Doctrine of Exhaustion of statutory remedies and was amenable for dismissal. Being of that mind, it is needless for us to consider the other grounds of appeal and we must stop here.

39. The appeal is without merit and is hereby dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OCTOBER, 2024. S. ole KANTAI.......................................JUDGE OF APPEALF. TUIYOTT.......................................JUDGE OF APPEALM. GACHOKA, C.Arb, FCIArb.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.