https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6638

Mol CY N.V v Public Procurement Administrative Review Board & 4 others (Application E010 of 2026) [2026] KEHC 6638 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6638 (KLR) Republic of Kenya In the High Court at Mombasa Application E010 of 2026 J Ngaah, J May 15, 2026 Between Mol CY N.V Applicant and Public Procurement Administrative Review Board 1st Respondent Accounting Officer, Kenya Ports Authority 2nd Respondent Kenya Ports Authority 3rd Respondent Kalmar Finland OY 4th Respondent and Wood Creek Limited Interested Party Judgment 1.By an originating motion dated 2 April 2026 the applicant has sought judicial review reliefs of certiorari and prohibition against the respondent’s decision dated 21 March 2026, in Request for Review Application No. 32 of 2026. The prayers for these judicial review reliefs have been couched in the following terms:“ 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.” 2.The motion is expressed to be brought under the provisions of Articles 10, 47, 48, SO (1) and 227 of the Constitution; , Sections 7,9, 10 and 11 of the Fair Administrative Actions Act Cap 7L; and Rules 9, 11, 13 and 21 of the Fair Administrative Action Rules, 2024, Section 175 of the Public Procurement and Asset Disposal Act Cap 412C. It is supported by the affidavit of Eunice J. Songok who has described herself as “a director of an agent of the applicant” who is said to be the “the Successful Bidder in LOT 1 of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors (hereinafter, the "subject tender''). 3.I must mention at the very outset that a similar application, albeit by way of judicial review, was filed in this Honourable Court by parties named in this motion as the 2nd and 3rd respondents as application no. E009 of 2026. The 1st respondent in this suit appears in the same capacity in application no. E009 of 2026 while the applicant and the rest of the interested parties in this suit appear as interested parties in the suit filed first in time. In other words, all the parties in this suit appear either in the same or different capacity in application no. E009 of 2026. 4.Like in suit no. E009 of 2026, the subject of this suit is the decision in request for review application no. 32 of 2026. Not surprisingly, the impugned decision is questioned, more or less, on similar legal grounds in both suits. The factual basis of the two suits is also similar. 5.Due to these similarities, the two suits were heard severally and, inevitably, the learned counsel adopted their submissions in application no. E009 of 2026 in this particular application. 6.Against this background, this judgment is, to a greater degree, on all fours with the judgment in application no. E0010 of 2026. 7.In summary by letters referenced PSM/CTC/1/01 (036) Vol.I dated 24 December 2024, the 2nd and 3rd respondent invited four approved Original Equipment Manufacturers (OEM) firms, to submit their bids for participation in a tender, more particularly described as “Tender No. KPN036/2025-26/ES -Supply, Testing and Commissioning of Terminal Tractors” (hereinafter “the subject tender”). Thus, the tendering method adopted in the subject tender was that of a restricted tender. The applicant in this suit was one of the four invited bidders. 8.Following an evaluation of the subject tender, the 2ⁿᵈ Respondent, vide a letter dated 13 February 2026 notified the Applicant that it had been awarded Lot 1 of the subject tender. Subsequently vide a letter dated 17 February 2026, the Applicant signified its acceptance of the award of Lot 1 of the subject tender. 9.The 4th respondent filed a Request for Review No. 32 of 2026 before the Respondent challenging the 1st respondent’s decision. On 21 March 2026, the respondent delivered a decision on the application and transmitted the decision to the parties by way of an email dated 22 March 2026. According to the impugned decision, the 1st respondent nullified and set aside the letters of Notification and Intention of Award dated 13 February 2026 issued by the Procuring Entity to the successful bidders in respect of the subject tender. 10.The 1st respondent further directed the 2nd and 3rd respondents to reinstate the 4th respondent's tender 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 respondent’s decision. 11.Being dissatisfied with the respondent’s decision, the applicant lodged the instant judicial review application in exercise of its right under section 175 (1) of the Act which provides, inter alia, that a person aggrieved by a decision made by the Review Board may seek judicial review by this Honourable Court within fourteen days from the date of the date of the decision. 12.Like the applicants in application no. E009 of 2026, the applicant’s position is that the 1st respondent deviated from the intention of the procuring entity which was represented in the terms and conditions of the tender. To begin with, the tender document mandatorily required that the Tax Compliance Certificate or its equivalent needed to be valid or current. It was not in dispute that the equivalent of the Tax Compliance Certificate submitted by the 1st Interested Party was undated. The applicant’s position is that, in these circumstances, the validity and currency of the “Certificate of Paid Taxes” submitted by the 4th respondent (as the equivalent of a valid or current Tax Compliance Certificate issued by the Kenya Revenue Authority) could not be ascertained on its face. 13.The 1st respondent is faulted to have deliberately ignored and failed to interpret the meaning of the word “equivalent” used in the Tender Document, thus, occasioning an irrational decision. 14.According to the applicant, bids which do not meet all the minimum mandatory requirements stipulated in a bid document are to be regarded as non-responsive and rejected without further consideration, a principle that the 1st respondent is alleged to have disregarded. 15.Further, there was a serious misdirection on the part of the 1st respondent as it deviated from the intention contained in the terms and conditions of the tender document by ignoring an express mandatory requirement under Section Ill Clause 2.2 (v) - of the Tender Document, which clearly required the bid to contain a valid quality certificate for the manufacturing company stating clearly that their (bidder or bidders) systems were certified for design and manufacturing processes, that is, ISO certification or equivalent. The 1st respondent is alleged to have acted ultra vires by assuming a role extraneous to its mandate, when it construed that the primary duty for the terminal tractors was 'material and load handling at the port' which interpretation had the effect of rewriting the Tender Document which, contrary to the 1st respondent’s interpretation, expressly provided for certification for 'design and manufacturing processes', thereby occasioning an illegality. 16.The 1st respondent took what, in the applicant’s view, an irrational position that the equivalent of a valid or current Tax Compliance Certificate and the scope of ISO Certification, which were mandatory tender requirements could only be ascertained at due diligence stage, yet the documents submitted by the 4th respondent were evidently non-compliant at face value during the preliminary evaluation stage. 17.The 1st respondent is also said to have acted ultra vires when it assumed a role extraneous to its mandate and ended up rewriting the Tender Document when it presumed that the scope of the management systems supplied by the 4th respondent was broad and encompassed the requirement of design and manufacturing, yet the scope on the Certificates submitted by the 4th respondent clearly stated that their systems were certified for other roles than 'Design and Manufacturing' that was mandatorily required in the Tender Document. The respondent’s decision of misinterpreting and equating 'assembly of port machinery and load handling equipment' to 'design and manufacturing' is contended to be irrational and illegal. 18.By ignoring the mandatory tender requirement that the bids were to contain a valid quality certificate for the manufacturing company stating clearly that their systems were certified for design and manufacturing processes, i.e. ISO certification or equivalent, the 1st respondent acted arbitrarily and went against the express mandatory requirements of the tender document. According to the applicant, the 1st respondent assumed the role of the evaluation committee of the procuring entity, thus, rendering its decision irrational and unlawful. 19.On the question of Beneficial Ownership, the 1st respondent acknowledged that indeed the 4th respondent's Tenderer Information Form was not fully completed despite being a mandatory requirement. The 4th respondent admitted that it did not comply with this mandatory requirement of disclosing its beneficial owners as it was its opinion that the said information would be provided through the Beneficial Ownership Disclosure Form after the “notification of award”. 20.Despite the 4th respondent’s admission of non-compliance with this mandatory requirement, the respondent went on an extraneous mission of justifying why its bid was responsive, when reasons for the justification were not even pleaded by the 4th respondent or at all. 21.The respondent observed that Form 6 of the Tender Document made a mention of beneficial ownership but provided no details of the nature of information required and further, that no space on the Form to fill in the information was provided. This was contrary to the evidence available because Form 8 contained detailed information on the nature of information on beneficial ownership and spaces to be filled. In any event, the 1st respondent failed to take into account the fact that in case of any ambiguity on mandatory requirements, the 4th respondent or any other bidder ought to have sought clarification from the Procuring Entity before proceeding to participate in the tendering process and that in the absence of any complaint or inquiry, it was assumed that the available information was clear to the bidders. 22.The 1st respondent’s finding that there was 'no detail on the nature of information required on beneficial ownership' to justify the 4th respondent’s non-compliance pointed to an arbitrary and illegal action by the 1st respondent which went against the express requirements of the tender document. 23.The 1st respondent is alleged to have assumed the role of the evaluation committee of the Procuring Entity by hypothesizing that “Besides, the information on the beneficial ownership entails details in relation to contract awards required upon issuance of notification of award to the successful in the tenderer at the contract stage” thus deviating from theintention contained in the terms and conditions of the tender documents, specifically Form 6 and consequently making its findings irrational. 24.On the requirement for a Schedule of Deviations, the 1st respondent appreciated that under Clause 2.2 (xiv) of the Tender Document, each bidder was mandatorily required to provide a separate schedule of deviations in the case of deviations in the specifications submitted by the bidder from the specifications in the tender document. The 1st respondent also appreciated that the 4th respondent acknowledged non-compliance but justified its failure to submit a separate schedule of deviations by contending that no schedule of deviations was required because its bid 'largely’ complied with or exceeded the specifications in the Tender Document. 25.In so finding, the 1st respondent totally ignored the mandatory clear contents and requirements of Section Ill Clause 2.2 (5. xiv) of the Tender Document; it instead examined the 4th respondent's tender and observed that their specifications were largely in accordance with the Procuring Entity's required specifications. The respondent reached an irrational decision that the 4th respondent need not have submitted a separate schedule of deviations as required in the Tender Document. 26.Section Ill Clause 2.2 (5. xiv) of the Tender Document, mandatorily required the bid submission to contain the Tenderer's Technical specifications and drawings 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. The mandatory requirement specified that in the case of deviations from the tender specifications given, a separate schedule of deviations was to be prepared accompanied by an account explaining how the departure from the technical specifications of the tender affected 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 with the technical specifications given by the procuring entity. 27.The Tender Document also made it mandatory that this separate schedule of deviations be signed and stamped by the manufacturer. Despite the admission of non-compliance by the 4th respondent, the 1st respondent acted arbitrarily and went against the express mandatory requirements of the tender document by finding that the 4th respondent’s specifications were largely in accordance with the Procuring Entity's required specifications. 28.The 1st respondent did not define what it meant by the term 'largely' and, in the process, it ended up assuming the role of the evaluation committee by evaluating and deeming the 4th respondent’s Bid as responsive based on a parameter alien to the mandatory tender requirements. Yet, according to the standards prescribed in the tender document, the bid could not have possibly progressed beyond the preliminary evaluation Stage. 29.It is the Applicant’s position that the use of the statement “largely in accordance with the Procuring Entity's required specifications” does not mean full compliance was achieved particularly for mandatory requirements in tender proceedings but confirmed some deficiencies or gaps existed in the 4th respondent's bid, gaps which the 1st respondent ignored, rendering its decision what the applicants have described as “an oxymoron”. 30.It is the applicant’s case that the end result of all these infractions is that the 1st respondent illegally and irrationally rewrote the Tender Document to suit the 4th respondent’s bid. By directing an otherwise non-responsive bid to be reinstated and evaluated from the technical evaluation stage, the 1st respondent is alleged to have legitimised a haphazard procurement process which condones, overlooks and justifies bending of express Tender Requirements in order to accommodate tenders, such as the 4th respondent’s tender, that fail to meet all mandatory requirements of the Tender Document. 31.According to the applicant, the 1st respondent failed to exercise its mandate to ensure transparent, reasonable, accountable and fair process in respect of the criteria utilized in preliminary mandatory evaluation of the Tender. 32.The 1st respondent did not file any response to the motion. The 2nd and 3rd respondents filed a replying affidavit sworn in that behalf by Daniel M. Amuyunzu who has introduced himself as the principal supply chain management officer at Kenya Ports Authority. As expected, Amuyunzu swore that the 2nd and 3rd respondents supported the applicant’s motion. 33.Turning to the merits of the applicant’s application, the 1st 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. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.” 34.These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. In exercise of its discretion, a judicial review court will intervene and may grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed. According to the Court of Appeal in Suchan Investment Limited versus Ministry of National Heritage & Culture & 3 Others (2016) Eklr, this principle was first adopted in R versus Home Secretary; ex parte, Daly (2001) 2 AC 532. 35.The applicant is concerned about the grounds of illegality and irrationality. Speaking of illegality, the question is whether the 1st 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. 36.The applicant’s grievances which form the basis of this particular ground stem from the fact that despite the 4th respondent’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 4th respondent either met or “largely” met the mandatory conditions. 37.The concept of mandatory requirements appears to be rooted in section 60 (1) and (2) as read with section 70(6) of the Act; section 60(1) and (2) of the of the Act states as follows:60.Specific requirements(1)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. 38.As far as specific technical requirements are concerned, subsection (3) provides finer details of what they entail; its states:(3)The technical requirements shall, where appropriate—(a)conform to design, specification, functionality and performance;(b)be based on national or international standards whichever is superior;(c)factor in the life of the item;(d)factor in the socio-economic impact of the item;(e)be environment-friendly;(f)factor in the cost disposing the item; and(g)factor in the cost of servicing and maintaining the item. 39.In subsection (4) (a) and (b), the accounting officer is cautioned against making reference to any particular trademark, name, patent, design, type, producer or service provider or to a specific origin in the technical requirements unless there is no other sufficiently precise or intelligible way of describing the requirements; and, the requirements allow equivalents to what is referred to.Section 70 (6), on the other hand, reads as follows:70 (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. 40.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. 41.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. 42.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. 43.Turning back to the subject tender, it is not in dispute that the procuring entity set forth in the tender document mandatory requirements by which all the identified tenderers, including the 4th respondent, were bound. Of particular relevance to this application are four requirements; these are:(a)a valid or current tax compliance certificate or equivalent;(b)a validity quality certificate for the manufacturing company(c)disclosure of beneficial ownership of information on beneficial ownership of the bidder or tenderer(d)Schedule of deviations from the specifications given in the tender document. 44.The requirement for a valid or current tax compliance certificate or its equivalent is found in clause 2.2 of the tender document under the heading “Preliminary examination for Determination of Responsiveness”. According to Clause 2.2(5) (ii) a “Valid/Current Tax Compliance Certificate or equivalent” is singled out as among the mandatory documents which a tenderer for the subject tender ought to have included in his bid submission. 45.In what the 4th respondent thought was compliance with this requirement, it submitted what was described in the impugned decision as a “certificate of paid taxes” issued by the Government of Finland. Nothing much turned on the description given to the certificate as such; the bone of contention is that the certificate was undated and, therefore, as much as it could be embraced as the equivalent of the local Tax Compliance Certificate, it was impossible to determine whether or not it was current, as at the time material to the tender period. 46.In its decision, the 1st respondent appreciated that the 4th respondent was foreign company- it was, in fact a Finnish company and the certificate it presented was issued by the “Finnish Tax Administration.” That notwithstanding, the respondent rightly held that the 4th respondent was not exempted from complying with the mandatory requirement of proof of payment of tax to the Finnish Government. 47.The certificate is said to have read in part as follows:“This is to certify 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." 48.But as noted, the certificate was not dated and, therefore, it was impossible to tell, on its face, the period or year the words “the past 12 months” referred to. The 1st respondent acknowledged this difficulty but still it was prepared to let the certificate pass notwithstanding this inadequacy. To this end, the 1st respondent held as follows:“It is the Board's humble view that there is only one way to ascertain that the Certificate of Paid Taxes issued by the Finnish Tax Administration to the Applicant meets the threshold of the subject tender is to check with the Finish Tax Authorities. A legal avenue is provided for such fact finding under Section 83 of the Act on due diligence, which provision is also supported by ITT 37 of the tender document.ITT 37 states as follows:"The Procuring Entity shall determine, to its satisfaction, whether the eligible Tenderer that is selected as having submitted the lowest evaluated cost and substantially responsive Tender, meets the qualifying criteria specified in Section III, Evaluation and Qualification Criteria.” 49.Having come to this conclusion, the 1st respondent held, thus:“ 85.Accordingly, the Board is convinced that the Procuring Entity did not have sufficient reason to disallow the Certificate of Paid Taxes submitted by the Applicant in fulfilment of the tender requirement on tax compliance. To that extent, the Board finds that the Procuring Entity applied a criterion outside the tender document.” 50.With due respect to the 1st respondent Board, due diligence is not an avenue in the procurement process to fill in the gaps or to make up for infractions in an otherwise non-responsive bid; neither is it meant to undercut bids that have made the cut as the lowest evaluated bids. Due diligence is a discretionary exercise undertaken after the evaluation but before the award is made for the purpose of the procuring entity satisfying itself that the successful bid has indeed met all the requirements for a successful bid. The relevant provision in this regard is section 83 of the Act which provides as follows: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.(2)The conduct of due diligence under subsection (1) may include obtaining confidential references from persons with whom the tenderer has had prior engagement.(3)To acknowledge that the report is a true reflection of the proceedings held, each member who was part of the due diligence by the evaluation committee shall—(a)initial each page of the report; and(b)append his or her signature as well as their full name and designation. 51.Thus, the post-qualification exercise of due diligence is not a second evaluation; rather, it is meant to confirm and verify that whatever information has been provided in support of a successful bid is correct and, at any rate, consistent with the requirements in the tender document. The presumption is that, by the time the award is made, the successful bidder has surmounted all the hurdles leading to the award would be entitled to award of the tender even without due diligence; due diligence being a discretionary exercise. Such cannot be the case where the tender falls short of the requirements, not least, the mandatory requirements at the preliminary qualification stage. 52.It follows that an undated certificate purporting to provide proof 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” without any specificity as to which period the “12 months” refers, and whether the alleged “past 12 months” are within the period material to the tender or relevant to the question whether the tenderer is up- to-date in payment of his taxes, could be said to have satisfied the requirement of “a Valid/Current Tax Compliance Certificate or equivalent” for the simple reason that the determination of the validity of the certificate could not be held in abeyance until a successful bid has been determined. 53.The second mandatory documentation required of the bidders and which was in issue in the respondent’s decision was the “Validity quality certificate for the manufacturing company”. This was a requirement under clause 2.2(5)(ii) (b) of the tender document and the particular terms in which this requirement was couched were as follows:“The bid submission shall contain the following documents; clearly marked and arranged in the following order: -ii.Particulars of Tendering Company to include: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.” 54.The 1st respondent established that it was not in dispute that the 4th respondent provided quality certificate as ISO 9000:2015 issued to Kalmar Finland Oy and “approved by LRQA” under number ISO 9001- 00031114. The scope of the approval was found to be applicable to “sales of material handling equipment, spare parts and other solutions; on demand and other maintenance services of material handling equipment”. The 1st respondent also noted that a further ISO Certification had been issued to, a subsidiary of the 4th respondent called Kalmar Industries (China) Co. Ltd which was approved for “port machinery and load handling equipment”. 55.The 1st respondent found these certifications to be sufficient to cover the certifications required in the tender document. It deemed the subject tender to be “for procurement of terminal tractors for the port of Mombasa and ICDN” and that “the primary duty for the terminal tractors is material and load handling at the port”. According to the 1st respondent, the certifications provided by the 4th respondent covered these aspects of the subject tender. The respondent further held:“The scope of the management systems supplied by the Applicant, particularly 'the assembly of port machinery and load handling equipment', is broad and encompasses the requirement of design and manufacturing as stated in the tender document.” 56.If there was any doubt on whether the certifications were satisfactory, the 1st respondent noted that such doubt could be discounted at the due diligence stage. To this end, the 1st respondent held, thus:“In any case, the full scope of the quality certification standard may not be appreciated without delving deeply into the data and literature to which the ISO standard applies. Such perusal can only be undertaken during due diligence. For purposes of Clause 2.2 (v) of Section III of the Tender Document a bidder was only required to show availability of the certification, the sufficiency of which cannot be demonstrated at the preliminary evaluation stage.” 57.I have already expressed myself on the purpose that the due diligence exercise serves; needless to reiterate, if any certification is necessary as a mandatory requirement for a responsive tender, the sufficiency of such certification cannot be deferred to the due diligence stage; it must be ascertained at the preliminary evaluation stage before a bidder can progress to the next stage of the procurement process. Due diligence, as earlier noted, is a discretionary exercise; at any rate, it is not intended to be an alternative to the legal obligation for evaluation of tenders to determine, among other things, whether or not they are responsive so that a determination can be made on the success or failure of the procurement process. The responsiveness of a tender cannot be determined at the tail-end of the procurement process. 58.I hold that if the procuring entity was specific that it was mandatory that a tenderer produces 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” it was not open to the respondent to effectively substitute this requirement and find that a certificate of “port machinery and load handling equipment” would satisfy this requirement. 59.Under Clause 6 of the tender document, a tenderer was entitled to seek for clarifications from the procurement entity and, therefore, if, as suggested by the respondent, it was the 4th respondent’s view, that the scope of the management systems supplied by the 4th respondent with respect to 'the assembly of port machinery and load handling equipment', was broad enough to include the requirement of design and manufacturing stated in the tender document, it was free to seek clarification on this particular requirement. Clause reads as follows:6.Clarification of Tendering Document6.1 A Tenderer requiring any clarification of the Tender Document shall contact the Procuring Entity in writing at the Procuring Entity's address specified in the TDS or raise its enquiries during the pre-Tender meeting if provided for in accordance with ITT 6.4. The Procuring Entity will respond in writing to any request for clarification, provided that such request is received no later than the period specified in the TDS prior to the deadline for submission of tenders. The Procuring Entity shall forward copies of its response to all tenderers who have acquired the Tender documents in accordance with ITT 5.3, including a description of the inquiry but without identifying its source. If so specified in the TDS, the Procuring Entity shall also promptly publish its response at the web page identified in the TDS. Should the clarification result in changes to the essential elements of the Tender Documents, the Procuring Entity shall amend the Tender Documents following the procedure under ITT 7. 60.In light of this provision, the 4th respondent could not have proceeded on the assumption that a certificate for “the assembly of port machinery and load handling equipment” was wide in scope as to cover the “certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes” when it could, and ought to have sought clarification from the procuring entity on whether indeed that was the case. 61.The third issue upon which the impugned decision is sought to be impeached on the judicial review grounds of illegality and irrationality is to do with the requirement for information on the beneficial ownership of a tendering company. This requirement was to be filled in what was described as “tender information form” in the tender document. For the record, it was a mandatory requirement that a tenderer discloses the beneficial ownership (of the tendering company) in this form. In particular, the tender document required each bidder to include in its bid an organizational chart showing the Board of Directors and the beneficial owners of the company. 62.When the question of non-disclosure of the relevant information was raised at the hearing before the respondent, the 4th respondent admitted that the information was not provided. According to the 1st respondent’s decision, the 4th respondent’s position was that:“…On its part the Applicant stated that the requirement for disclosure of beneficial ownership was immaterial at this stage of the procurement process when the stipulated Form No. 8 of Section VIII contemplated that such information was to be submitted post-award”. 63.The 1st respondent acknowledged, and indeed established as a fact that the 4th respondent had not complied with this particular requirement. However, the 1st respondent rather faulted the form in which the information sought was to be filled ostensibly for “making no mention of beneficial ownership” and providing “no detail of the nature of information required.” Further, the form is said to have lacked any or sufficient space to accommodate the required information. 64.The 1st respondent further held that the information on the beneficial ownership entailed “details in relation to contract awards required upon issuance of notification of award to the successful in the tenderer at the contract stage”. Despite the fact that the information required was not provided, the 1st respondent still determined the 4th respondent’s bid responsive. 65.If the information on beneficial ownership of any tenderer was necessary and, in fact, a mandatory requirement at the evaluation stage, it was not open to the 1st respondent to interpret the requirement as seeking information that would only be necessary after the issuance of the notification of the award. It would be illogical and, in the language of judicial review, irrational, that information necessary to determine the responsiveness of a tender would be sought after the tender award has been made. Needless to say, an award would ordinarily be made and a notification to that effect issued after a tender has been determined to be responsive and progressed successfully through the rest of the stages of evaluation, in particular and the procurement process in general. 66.That notwithstanding, it would appear that the 1st respondent was not quite clear in its mind whether the problem with the requirement was that information ought to have been sought after the notification. I say so because while, on the one hand, the 1st respondent faulted the stage at which the information of beneficial ownership of the 4th respondent was sought, it, on the other hand, stated that the information could not have been provided for lack of space or sufficient space in the form. 67.Be that as it may, if the 4th respondent harboured any doubts of when the required information ought to have been provided; or the details required to satisfy this requirement; or whether the 4th respondent was free to provide the information through other means than filling in the space provided in the form; and, if the 4th respondent was not clear on any other question, for that matter, concerning this particular requirement, it could and ought to have taken advantage of clause 6 of the tender document and sought the necessary clarification. 68.A tenderer cannot be deemed to have complied with a mandatory requirement merely because there was no space in the tender document to fill in the information required. Neither can a tenderer chose when to provide any particular information if the requirements are express and clear that the information ought to be provided at a particular stage of the procurement process. 69.The final issue in the 1st respondent’s decision out of which the instant suit has been filed was the requirement on what was described in the tender document as “the schedule of deviations.” This was a mandatory requirement and was captured in the tender document in the following terms:“ 2.2 (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”. 70.In short, the requirement was that in the event of deviations from the technical specifications given by the procuring entity, a bidder was required to provide a schedule of those deviations explaining the extent to which those deviations would affect the performance, durability and dimensions of the terminal tractors. 71.The 4th respondent did not provide any schedule of deviations. The respondent did not find any problem with this omission because, in its words: “…the Applicant's specifications were largely in accordance with the Procuring Entity's required specifications hence did not submit a separate schedule of deviations. The Board therefore finds that the Applicant was substantially responsive to the requirement on schedule of deviations.” 72.By stating that the 4th respondent’s specifications “were largely in accordance with the Procuring Entity's required specifications” the respondent must have necessarily been implying that the 4th respondent’s technical specifications were not completely consistent with those given by the procuring entity. In other words, there was some degree of deviation for which, under clause 2.2 (xiv) a schedule ought to have been provided. 73.My understanding of the requirement of the schedule of deviation or deviations is that, as long as a bidder’s or tenderer’s specifications fell short of the required specifications, a schedule of the deviation or deviations ought to have been given irrespective of the degree below which the specifications fell from the threshold. It followed that the question whether any particular tender was substantially or, in the words of the 1st respondent, was “largely” in accordance with the specifications need not have arisen. 74.I suppose particularisation of deviations would generally be necessary for comparison purposes; a bidder with a lower degree of deviation would logically be deemed to more competitive in the technical specifications, or in any other aspect of the procurement, for that matter, in the procurement process. 75.Section 79. (2) (a) provides a window for what it considers as minor deviations that do not materially 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; 76.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. 77.What 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. 78.The cumulative effect of the 1st respondent’s conduct in blatantly overlooking the 4th respondent’s failure to comply with the what was expressly stated in the tender document as mandatory requirements is that its decision is tainted on the grounds of illegality and irrationality. 79.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. 80.It is also worth noting that under section 80(2) of the Act, the evaluation of tenders is subject the criteria and procedures set out in the tender document. This section reads as follows:80.(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. 81.The 1st respondent invoked this provision in its decision and even went further to cite the decision of Mativo, J. (as he then was) in Republic v Public Procurement Administrative Review Board; Arid Contractors & General Supplies (1st respondent) Ex parte Meru University of Science & Technology [2019] KEHC 1935 (KLR)where the learned judge applied this provision of the law and held:“ 74.74. In several decisions of this court I have stated that 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 underlying purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and to the same terms and conditions.” 82.But as it has turned out, it is one thing to cite the applicable law and precedents in which any particular provision of the law has been correctly interpreted and applied and another thing, altogether, to apply the law and follow the precedent in the determination of a case with which a judicial or a quasi-judicial body such as the respondent is seized of. 83.I say so because despite identifying the proper law and the previous court decisions that ought to have been followed in its decision, the 1st respondent proceeded to act contrary to those provisions of the law and the precedents which it acknowledged as representing the true and proper interpretation of the law applicable to the case before it. Going by the respondent’s decision, the 4th respondent was to be evaluated on less stringent mandatory requirements set out in the tender document than the rest of its competitors; a position that is diametrically opposite to the letter and spirit of the law and the court decision which the respondent acknowledged as representing the proper interpretation of the law. 84.To be precise, the 1st respondent acted in excess of its jurisdiction and was irrational in its decision when it cleared a purported tax compliance certificate whose validity period could not be ascertained at the evaluation stage. It was also irrational of the 1st respondent to conclude that, contrary to the mandatory requirements in the tender document, the validity period of the certificate, could be ascertained once an award of the tender had been made yet proof of a valid tax compliance certificate was necessary at the preliminary evaluation stage for the determination of a responsive tender. 85.The 1st respondent was also irrational in its decision when, without any sort of clarification, it determined that a certificate applicable to “sales of material handling equipment, spare parts and other solutions; on demand and other maintenance services of material handling equipment” or a certificate issued to the 4th respondent’s subsidiary for “port machinery and load handling equipment” was equivalent to the mandatory certification expressed in the tender document as “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”. Here, the decision was also tainted on the ground of illegality because the 1st respondent took into account matters which it ought not to have considered and failed to consider matters which it ought to have considered. 86.The 1st respondent’s decision is tainted on the same grounds of irrationality and illegality for the reason that the respondent determined that the 4th respondent was not bound to disclose the beneficial owners of the 4th respondent ostensibly because of lack of space in the form in which this information was to be filled yet it was a mandatory condition that this information ought to have been disclosed. The decision is also irrational to the extent that it determined the disclosure of the beneficial owners of the 4th respondent could only be done at the due diligence stage when the mandatory requirement was that the information was necessary for the evaluation of the tenders at the preliminary evaluation stage. 87.Finally, the 1st respondent’s decision is illegal and irrational for having determined that it was unnecessary for the 4th respondent to submit a schedule of its specification’s deviations ostensibly because the 4th respondent had “largely” complied with the technical specifications outlined by the procuring entity when it was not apparent the degree to which the 4th respondent had complied. 88.By concluding that the 4th respondent had complied with the mandatory requirements when it was apparent that the it had not or that the 4th respondent need not have complied with the certain mandatory requirements until the award had been made, the respondent’s decision fits the description of the category of decisions that were described in Associated Provincial Picture Houses Ltd, V. Wednesbury Corporation (1948)1 K.B. 223 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”. 89.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. 90.Based on the material before court, the 1st respondent also acted in excess of its jurisdiction circumscribed in section 173(1) of the Public Procurement and Asset Disposal Act. This provision of the law reads as follows:173.Powers of Review BoardUpon completing a review, the Review Board may do any one or more of the following—(a)annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety;(b)give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings;(c)substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;(d)order the payment of costs as between parties to the review in accordance with the scale as prescribed; and(e)order termination of the procurement process and commencement of a new procurement process. 91.There is nothing in these provisions that suggests that in exercise of its powers, the 1st respondent is entitled to sidestep or overlook mandatory conditions in a tender document and, in the process, clear a tenderer whose bid is otherwise non-responsive. To the extent that the 1st respondent did so, the 1st respondent not only acted in excess of its jurisdiction but also its decision is ultra vires section 173 of the Act. Failure of the 1st respondent in this regard also demonstrates that the 1st respondent neither understood correctly the law that regulates its decision-making power nor gave effect to it. The decision would fall on the ground of illegality. 92.For the reasons I have given, I am satisfied that the applicant’s application is merited; the application is allowed in the following terms:(a)An order of certiorari is hereby granted bringing into this Honourable Court for purposes of being quashed, and the court hereby quashes the decision of the Public Procurement Administrative Review Board dated 21 March 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.(b)An order of prohibition is hereby granted directing at the 2nd and 3rd Respondents, prohibiting them from implementing the decision of the 1st Respondent dated 21 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.(c)Parties will bear their respective costs. SIGNED, DATED AND DELIVERED ON 15 MAY 2026 NGAAH JAIRUSJUDGE