https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1212

Okoth and Kiplagat Advocates v Procurement Administrative Review Board & 3 others (Civil Appeal E401 of 2026) [2026] KECA 1212 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1212 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E401 of 2026 AK Murgor, JM Ngugi & M Sila, JJA June 26, 2026 Between Okoth And Kiplagat Advocates Appellant and Procurement Administrative Review Board 1st Respondent The Accounting Officer, The National Treasury 2nd Respondent The National Treasury 3rd Respondent G & A Advocates LLP 4th Respondent (An Appeal from the Judgment and decree of the High Court of Kenya at Nairobi (Ouya, J.) dated 4th May, 2026 in HCJR E078 of 2026) Judgment 1.This appeal arises from a public procurement dispute concerning the engagement of local counsel to represent the Republic of Kenya in international arbitration proceedings commenced under the London Court of International Arbitration (LCIA) Arbitration Rules, 2020. The appeal is brought against the judgment of the High Court (T.W. Ouya, J.) delivered on 4th May, 2026 in Milimani High Court Judicial Review Application No. E078 of 2026. In that judgment, the learned Judge dismissed the Appellant's challenge to a decision of the 1st Respondent, the Public Procurement Administrative Review Board ("the Review Board") upholding the award of Tender No. TNT/SPP/RT/010/2025–2026 to G&A Advocates LLP, the 4th Respondent herein. The Appellant contends that both the Review Board and the learned Judge fell into error by permitting the 4th Respondent to rely on professional experience acquired by one of its partners while practicing in a different law firm and thereby effectively rewriting the Tender Document. The Respondents maintain that the Review Board merely interpreted the Tender Document and acted well within the scope of its statutory mandate. 2.The material facts are largely undisputed. On 8th January, 2026, the National Treasury, acting on behalf of the Cabinet Secretary to the National Treasury, issued Tender No. TNT/SPP/RT/010/2025–2026 (“the Tender”) for the procurement of legal services of local counsel to represent the Republic of Kenya in arbitration proceedings instituted by Jamhuri Holdings Limited at the LCIA. The procurement was undertaken through a restricted tendering process owing to the specialized nature of the services sought and the significant financial exposure facing the Republic in the arbitral proceedings. 3.Only two firms submitted bids in response to the tender invitation: Okoth & Kiplagat Advocates, the Appellant, and G&A Advocates LLP, the 4th Respondent. Following evaluation, both firms were found responsive and proceeded through the technical evaluation stage. The 4th Respondent attained a technical score of 98%, while the Appellant attained a technical score of 76%. Upon completion of the financial evaluation, the 4th Respondent emerged as the lowest evaluated bidder, having submitted a bid of KShs. 358 million compared to the Appellant's bid of KShs. 380 million. The tender was consequently awarded to the 4th Respondent. The Appellant was notified of the outcome through a notification of intention to award dated 4th February, 2026 and communicated by email on 5th February, 2026. 4.The dispute that has ultimately found its way to this Court centres on one aspect of the technical evaluation. Under Criterion 1(b) of the Tender Document, bidders were to be assessed on the “Specific Experience of the Firm.” The 4th Respondent received full marks under that criterion. The Appellant contended before the Review Board, and has consistently maintained thereafter, that the 4th Respondent only achieved that score because it relied upon arbitration experience acquired by Mr. Ken Melly while he was practicing at Iseme, Kamau & Maema Advocates, a different law firm. The Appellant argued before the Review Board that the Tender Document drew a deliberate distinction between experience attributable to the bidding firm and experience attributable to individual advocates. 5.The 2nd Respondent (the “Procuring Entity”) and the 4th Respondent took a different view at the Review Board. They maintained that professional experience acquired by an advocate remains available to that advocate regardless of subsequent changes in professional affiliation. In their view, where such an advocate is a partner in a law firm, that experience properly forms part of the firm's collective professional expertise and may legitimately be considered in assessing the firm's experience. 6.The Review Board, in its decision in Request for Review No. 24 of 2026 delivered on 9th March, 2026, rejected the challenge mounted by the Appellant and upheld the award of the tender to the 4th Respondent. In doing so, it accepted that professional experience acquired by an advocate may properly be attributed to a law firm in which that advocate is a partner and concluded that the evaluation committee had not acted unlawfully in awarding the 4th Respondent the impugned marks. 7.Dissatisfied with that outcome, the Appellant moved to the High Court by way of judicial review proceedings under section 175(1) of the Public Procurement and Asset Disposal Act (“the Act”). It sought, among other reliefs, orders of certiorari quashing the Review Board's decision; orders prohibiting implementation of that decision; and orders nullifying the contract subsequently entered into between the National Treasury and the 4th Respondent. The challenge was framed principally as one of illegality, irrationality, unreasonableness and violation of Articles 10, 47 and 227 of the Constitution. The gravamen of the complaint remained that the Review Board had sanctioned the application of an evaluation criterion that was not contained in the Tender Document. 8.In a carefully reasoned judgment, the learned Judge dismissed the application. The learned Judge accepted that judicial review under the Constitution of Kenya, 2010 is no longer confined to the traditional common-law grounds of review and may, in appropriate circumstances, extend to examination of legality, rationality, reasonableness and constitutional compliance. However, she concluded that the dispute before her did not warrant such intervention because it ultimately concerned the correctness of the Review Board's interpretation of the Tender Document. In her view, the Court was being invited to determine which of two competing interpretations of the criterion relating to firm experience was correct and thereby substitute its own view for that of the Review Board. The learned Judge held that such an exercise would improperly convert judicial review into an appeal on the merits and accordingly declined to interfere with the Board's decision. 9.It is against that judgment that the present appeal has been brought. 10.In its Memorandum of Appeal, the Appellant faults the learned Judge on several grounds which, when distilled, may be grouped into four broad complaints. First, that the learned Judge misapprehended the contemporary scope of judicial review under the Constitution and erroneously treated the dispute as a merit-based appeal rather than a legality challenge. Secondly, that the learned Judge failed to appreciate that the Review Board unlawfully altered the Tender Document by conflating firm experience with individual advocate experience. Thirdly, that the learned Judge erred in declining to invalidate a contract allegedly executed in violation of the statutory procurement challenge framework. Fourthly, that the learned Judge improperly relied upon considerations of public interest and the ongoing arbitration proceedings to sustain an unlawful procurement outcome. 11.The appeal arises from judicial review proceedings and is therefore a first appeal. The applicable standard of review was recently restated by the Supreme Court in Sonko v County Assembly of Nairobi City & 11 Others [2022] KESC 76 (KLR), where the Court observed:"The duty to re-evaluate evidence is the function of a first appellate court as enunciated in the celebrated case of Selle v Associated Motor Boat Company Ltd [1968] EA123.A first appellate court should accord deference to the trial Judge's conclusions of fact and only interfere with those conclusions if it appears to it, either that the trial judge has failed to take into account any relevant facts or circumstances or based the conclusions on no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions." (See also Nkube v Nyamuro [1983] KLR 403). 12.Accordingly, as a first appellate court, we are under a duty to reconsider the record, evaluate the material that was before the High Court and draw our own conclusions. At the same time, we must accord due deference to findings of fact made by the learned Judge and refrain from interfering with them unless it is demonstrated that the Judge misapprehended the evidence, failed to take into account relevant considerations, took into account irrelevant considerations, or acted on a wrong principle. 13.However, because this appeal arises from the exercise of judicial review jurisdiction, an additional consideration arises. Our task is not to conduct the judicial review afresh nor to determine whether we would have reached the same conclusion as the learned Judge. Rather, we must determine whether the learned Judge correctly identified the applicable principles governing judicial review, properly appreciated the scope of the supervisory jurisdiction being exercised, and correctly applied those principles to the facts of the case. Where the appeal turns on questions of law, including the scope of judicial review and the interpretation of constitutional or statutory provisions, this Court owes no deference to the conclusions reached by the High Court and is entitled to undertake its own independent analysis. 14.The parties filed written submissions. Those of the Appellant are dated 28th May, 2026; those for the 1st, 2nd and 3rd Respondents are dated 29th May, 2026. The submissions for the 4th Respondent are dated 28th May, 2026. During the plenary virtual hearing, Mr. George Karuthui and Ms. Susan Munene, learned counsel, appeared for the Appellant; Mr. Kariuki, Senior State Counsel appeared for the 1st – 3rd Respondents; while Dr. Muthomi Thiankolu, Senior Counsel, teaming up with Mr. Kenson Muteithia and Mr. Elisha Odhiambo, learned counsel, appeared for the 4th Respondent. Counsel relied on their written submissions, orally highlighted them and engaged with the Court. 15.On the substantive question before the Court, learned counsel for the Appellant submitted that the appeal turns on a question of legality rather than one of procurement evaluation. Counsel argued that the Tender Document deliberately established two separate evaluative categories: Under Criterion 1(b), bidders were to be assessed on the "Specific Experience of the Firm." Elsewhere, the Tender Document separately evaluated the qualifications and experience of individual advocates proposed as members of the legal team. According to counsel, the distinction was deliberate and meaningful. The Review Board therefore acted unlawfully when it permitted experience acquired by Mr. Ken Melly while practising at Iseme, Kamau & Maema Advocates to count as experience of G&A Advocates LLP itself. 16.Counsel further submitted that once the Review Board adopted that approach, it ceased merely to interpret the Tender Document and instead rewrote it. Such conduct, counsel argued, violated section 80 of the Act as well as Article 227 of the Constitution. Reliance was placed principally on JGH Marine A/S Western Marine Services Ltd CNPC Northeast Refining & Chemical Engineering Co. Ltd/Pride Enterprises v Public Procurement Administrative Review Board & 2 Others [2015] eKLR, as subsequently applied in Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Numerical Machining Complex Limited [2016] eKLR and Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Coast Water Services Board & Another [2016] KEHC 3797 (KLR). Counsel submitted that these authorities establish that the Review Board exceeds its statutory mandate when it ignores the express provisions of a Tender Document and effectively substitutes its own evaluation criteria for those adopted by the procuring entity. 17.On the question of correct scope of judicial review, counsel argued that the learned Judge correctly identified the governing authorities but misapplied them. In particular, counsel relied on Suchan Investment Ltd v Ministry of National Heritage & Culture (Civil Appeal No. 46 of 2012) [2016] KECA 729 (KLR) (4 March 2016) (hereafter, “Suchan Case”); Saisi & 7 Others v Director of Public Prosecutions (Supreme Court Petitions 39 & 40 of 2019 (Consolidated) [2023] KESC 6 (KLR) (27 January 2023) (hereafter “Saisi Case”); and the Supreme Court's decision in Dande & 3 Others v Inspector General, National Police Service (Supreme Court Petitions No. 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated))[2023] KESC 40 (KLR) (16 June 2023) (hereafter “Dande Case”). Counsel submitted that those decisions establish that judicial review under the Constitution is no longer confined to procedural defects but extends to legality, rationality, reasonableness and constitutional compliance. Accordingly, once the Appellant alleged violation of Article 227 of the Constitution and departure from disclosed procurement criteria, the High Court was obliged to interrogate the legality of the Review Board's decision rather than decline review on the basis that the dispute touched upon evaluation criteria. 18.The Appellant further contended that the contract executed between the Procuring Entity and the 4th Respondent was unlawful because it was entered into during the pendency of statutory challenge proceedings. Counsel submitted that the procurement framework contemplates a standstill period intended to preserve the efficacy of review mechanisms and prevent procuring entities from rendering challenges nugatory through premature implementation. It was argued that any contract executed in contravention of that framework is void and incapable of being validated by subsequent performance. 19.The 1st – 3rd Respondents opposed the appeal. Learned state counsel submitted on their behalf that the Appellant's challenge was, in substance, an attempt to re-open the technical evaluation process through the vehicle of judicial review. Counsel argued that the Review Board was confronted with the task of interpreting an evaluation criterion whose meaning was not expressly defined in the Tender Document. The Review Board adopted a commercially sensible interpretation and remained well within the scope of its statutory mandate. The High Court, it was submitted, correctly recognized that judicial review does not authorize courts to substitute their own interpretation for that of a specialized tribunal merely because an alternative interpretation is possible. 20.Counsel for the 1st – 3rd Respondents further argued that professional experience belongs to the advocate who acquires it and does not disappear when that advocate changes firms. In the context of legal practice, it was submitted, a law firm's expertise necessarily derives from the advocates who constitute it. The Review Board's conclusion that experience acquired by a partner may properly be considered part of the firm's experience was therefore neither irrational nor unlawful. 21.The 4th Respondent supported the judgment of the High Court and largely adopted the arguments of the 1st – 3rd Respondents. In addition, the 4th Respondent raised a preliminary objection concerning the competence of the appeal. Counsel submitted that procurement disputes are governed by strict statutory timelines which are jurisdictional in nature. According to counsel, the appeal was filed outside the period prescribed by section 175(4) of the Act and is therefore incompetent. 22.According to counsel, section 175(4) of the Act requires an appeal to the Court of Appeal from a judgment of the High Court in procurement proceedings to be filed "within seven days" of the High Court decision. Counsel further relied on section 5(1) of the Act and submitted that the statutory timelines governing procurement disputes are mandatory, strict, and jurisdictional in nature. 23.Counsel drew the Court's attention to what he said was the chronology disclosed by the Judiciary e-filing system. It was submitted that the impugned judgment of the High Court (Ouya, J.) was delivered on 4th May 2026 and uploaded to the Judiciary e-filing portal at 19:04:12 hours on the same day. On the 4th Respondent's computation, the seven-day period prescribed by section 175(4) expired on 11th May 2026 at 19:04:12 hours. Counsel submitted that the Appellant's Memorandum of Appeal and Record of Appeal were not filed until 12th May 2026 at 04:10:09 hours, after expiry of the statutory period. The Record of Appeal was subsequently served on the 4th Respondent on 15th May 2026. It was therefore argued that the appeal was lodged out of time and was incurably defective. 24.The 4th Respondent further submitted that the procurement timelines established by section 175(4) of the Act are not procedural timelines capable of enlargement or waiver but jurisdictional limits imposed by statute. Counsel argued that once the statutory period lapses, the Court is divested of jurisdiction and cannot entertain the appeal regardless of the length of the delay or the absence of prejudice. In that regard, counsel emphasized that procurement disputes are governed by deliberately compressed timelines designed to promote finality, certainty, and uninterrupted implementation of public procurement processes. 25.In support of that proposition, counsel relied principally on ELC Electroconsult S.P.A. v Public Procurement Administrative Review Board & 3 Others [2025] KECA 2314 (KLR), which, according to counsel, involved an appeal filed one day outside the statutory period. Counsel submitted that this Court reiterated that a document is deemed duly filed only when it is both lodged and the prescribed fees paid within the prescribed statutory period, and consequently held that it lacked jurisdiction to entertain the matter. 26.Counsel also relied heavily on Aprim Consultants v Parliamentary Service Commission & Another [2021] KECA 1090 (KLR), which was cited as authority for the proposition that the timelines in section 175 of the Act admit no interpretive flexibility. Particular reliance was placed on paragraphs 16 and 27 of that decision where this Court stated:“We think, with respect, that the provisions of section 175 are couched in terms that are plain and unambiguous, admitting to no interpretive wriggle room... To step out of time is to step out of jurisdiction and any act or decision outside jurisdiction is, by application of first principles, a nullity." 27.On the basis of those authorities, the 4th Respondent urged the Court to find that the appeal was filed outside the mandatory seven-day period prescribed by section 175(4) of the Act and to strike it out for want of jurisdiction without proceeding to consider the substantive grounds of appeal. 28.Apart from the preliminary objection on timeliness, the 4th Respondent submitted that the appeal is devoid of merit because it seeks to convert judicial review proceedings into a merits appeal contrary to section 175 of the Act and established procurement jurisprudence. Counsel argued that the Appellant's complaint, properly understood, was not directed at the legality of the Review Board's decision-making process but at the correctness of the Board's interpretation of the Tender Document. According to the 4th Respondent, the Appellant's case invited the High Court, and now this Court, to substitute its preferred interpretation of the tender criteria for that adopted by the Procuring Entity and the Review Board. Such an exercise, counsel submitted, falls outside the permissible scope of judicial review and belongs properly to an appellate jurisdiction that section 175 of the Act does not confer upon the High Court. The 4th Respondent relied on authorities emphasizing that, even under the expanded conception of judicial review recognized by the Supreme Court, courts may not usurp the role assigned by statute to specialized procurement bodies. 29.The 4th Respondent further submitted that the interpretation adopted by the Procuring Entity and affirmed by the Review Board was neither irrational nor unlawful. Counsel argued that a law firm, being an artificial legal entity, can only possess experience through the advocates who constitute it. Accordingly, there was nothing unreasonable in treating relevant experience acquired by a partner or advocate while practising in another firm as experience available to the firm in which that advocate subsequently practices. In counsel's view, the interpretation adopted by the Review Board reflected commercial and professional reality and was a rational construction of the tender requirements. The Appellant's disagreement with that interpretation did not transform the issue into one of legality. Rather, it merely reflected dissatisfaction with the outcome of the procurement process. 30.The 4th Respondent also rejected the Appellant's contention that the Review Board rewrote or amended the Tender Document. Counsel maintained that the Review Board did not introduce a new criterion, alter an existing criterion, or evaluate bids on the basis of undisclosed considerations. Instead, the Review Board merely interpreted and applied the criterion relating to "firm experience." Whether that interpretation was right or wrong was, according to the 4th Respondent, immaterial in judicial review proceedings unless it could be shown to be irrational in the Wednesbury sense or otherwise unlawful. Counsel submitted that the Appellant had failed to demonstrate any illegality, irrationality or procedural impropriety in the Board's approach. 31.The 4th Respondent further argued that the procurement process involved a specialized procurement under section 114A of the Act requiring highly technical expertise in international commercial and investment treaty arbitration. Counsel submitted that the procurement framework deliberately entrusted evaluation of such matters to technical actors, including the evaluation committee, procurement professionals, the accounting officer, and ultimately the Review Board. It was therefore inappropriate, in counsel's submission, for a reviewing court to second-guess the substantive judgment of those specialized bodies absent a clear violation of law. Reliance was placed on authorities, including Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR), emphasizing the need for judicial deference to specialized procurement tribunals. 32.Finally, the 4th Respondent argued that even if some basis for judicial review had been established, the grant of judicial review remedies remained discretionary. Counsel submitted that the learned Judge properly exercised that discretion and that there was no basis for appellate interference. The Appellant had not demonstrated that the learned Judge acted on a wrong principle, misdirected herself, took into account irrelevant considerations, failed to consider relevant considerations, or otherwise exercised her discretion injudiciously. Accordingly, the appeal ought to be dismissed with costs. 33.We have carefully considered the Record of Appeal, the judgment of the High Court, the grounds of appeal, and the rival submissions of the parties. Although several grounds have been advanced, the appeal may conveniently be resolved through determination of the following issues:a.Whether the appeal is competent in light of the timelines prescribed under section 175(4) of the Act;b.Whether the learned Judge erred in restricting judicial review to procedural review and thereby failed to engage with the Appellant's legality challenge;c.Whether the Review Board unlawfully rewrote the Tender Document by treating individual advocate experience as firm experience;d.Whether the contract was unlawfully executed during the statutory challenge period under section 175 of the Act; ande.Whether the learned Judge improperly relied on public interest and the ongoing arbitration proceedings to sustain an allegedly unlawful procurement process 34.The first issue, which is raised by the 4th Respondent, is potentially dispositive, so we must begin with it: whether the Court has jurisdiction by virtue of section 175(4) of the Act. It is settled that where a jurisdictional challenge is raised, a court must address it at the earliest opportunity because jurisdiction is everything; without it, a court has no power to take even one further step. See Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1. 35.In sum, the 4th Respondent contends that the appeal was filed outside the period prescribed by section 175(4) of the Act – which is seven (7) days - and is therefore incompetent. Reliance is placed on decisions of this Court earlier cited emphasizing the strict and peremptory nature of the procurement timelines. Counsel submitted that those timelines are jurisdictional and incapable of extension. 36.In response to the 4th Respondent's contention that the appeal was filed outside the seven-day period prescribed by section 175(4) of the Act, counsel for the Appellant submitted that any delay in filing was attributable not to indolence or lack of diligence on the part of the Appellant, but to difficulties occasioned by the Judiciary's e-filing system. Counsel referred the Court to the affidavit of Dr. Kenneth Kiplagat sworn on 29th May 2026 and the annexures thereto, including an email dated 12th May 2026 from the Judiciary, which, according to counsel, demonstrated that the inability to complete the filing process within time arose from circumstances beyond the Appellant's control. Counsel emphasized that the Appellant had taken all reasonable steps to lodge the appeal within the statutory period but was prevented from doing so by technical difficulties affecting the filing platform. 37.Counsel submitted that section 175(4) of the Act should not be construed so rigidly as to penalize a litigant who has demonstrated diligence but is prevented from filing by failures in the court's own systems. He argued that the purpose of the statutory timeline is to sanction parties who fail to act within time despite having the ability to do so, not parties who are actively attempting to comply but are thwarted by circumstances outside their control. In that regard, counsel urged the Court to distinguish between delays attributable to a litigant and delays attributable to the court system itself. 38.The Appellant further relied on authorities cited in its supplementary submissions which, according to counsel, establish the principle that technical failures in electronic filing systems, where not attributable to a litigant, ought not to be visited upon the affected party. The authorities cited include: Charo v Mwashetani & 3 others (Application 15 of 2014) [2014] KESC 47 (KLR) (4 July 2014) (Ruling); Muthuuri & 4 others v Attorney General & 2 others (Petition)(Application) 15 (E022) of 2021) [2022] KESC 74 (KLR) (4 November 2022) (Ruling); Keiru v Githumbi (Miscellaneous Civil Case E088 of 2024) [2025] KEHC 10219 (KLR) (11 July 2025) (Ruling); East African Portland Cement Company v Kenya Chemical & Allied Workers Union & 3 others (Civil Appeal (Application) 532 of 2023) [2024] KECA 1317 (KLR) (27 September 2024) (Ruling); Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others (Petition 5, 3 & 4 of 2013 (Consolidated)) [2013] KESC 6 (KLR) (16 April 2013) (Judgment); Josephine Obaga Mogere vs Telkom Kenya (Court of Appeal Civil Application E474 of 2025). Counsel submitted that the Court should exercise its discretion in a manner that prevents a litigant from being denied access to justice as a consequence of technological failures beyond its control. 39.Counsel also invoked Articles 48 and 159 of the Constitution. He submitted that undue emphasis should not be placed on procedural technicalities where a party has acted diligently, provided a satisfactory explanation for the delay, and demonstrated promptness throughout the process. In counsel's view, constitutional guarantees of access to justice and the obligation to administer justice without undue regard to procedural technicalities required the Court to consider the explanation offered rather than strike out the appeal solely on account of the brief delay occasioned by the e-filing difficulties. 40.There can be little dispute regarding the legal principles governing section 175 of the Act. This Court has repeatedly emphasized that the procurement dispute resolution framework is designed to ensure expedition, certainty and finality. The statutory timelines are deliberately compressed in recognition of the public interest in timely completion of procurement processes. Courts have therefore generally treated those timelines as mandatory rather than directory. The most recent statement of this principle by this Court is found in ELC Electroconsult Case (supra) where the Court was clear that tardiness even by a day removes the jurisdiction of the Court under section 175 of the Act. 41.We have carefully considered the rival arguments. We readily accept the proposition advanced by the 4th Respondent that the timelines prescribed by section 175 of the Act are strict and generally jurisdictional. The authorities cited by the 4th Respondent, including Aprim Consultants Case and ELC Electroconsult Case, leave little room for doubt that where a party fails to institute proceedings within the time prescribed by the Act, the Court is deprived of jurisdiction to entertain the matter, and that there is no interpretive wriggle room to enlarge time under section 175 of the Act. 42.The difficulty in the present case, however, lies not in the applicable legal principles but in the factual premise upon which the jurisdictional objection rests. While the 4th Respondent maintains that the appeal was lodged and paid for outside the prescribed period, the Appellant has placed before the Court material suggesting that the apparent delay may have been occasioned by technical difficulties affecting the Judiciary's e-filing platform. In particular, the Appellant relies on the affidavit of Dr. Kenneth Kiplagat, the correspondence from the Court registry, and the chronology of events surrounding the generation of invoices and attempted payment. The Appellant's explanation is neither fanciful nor implausible. Nor has the material placed before us enabled us to conclusively determine that the delay, if any, was attributable to the Appellant rather than to a malfunction or limitation of the Court's electronic filing system. 43.In those circumstances, we are unable to make a definitive finding that the appeal was filed or paid for out of time through any fault of the Appellant. To do so would require us to resolve factual uncertainties on an incomplete record and, in effect, to attribute responsibility for the delay to the Appellant notwithstanding a plausible explanation that the delay arose from circumstances beyond its control. We are not persuaded that the record permits such a finding. 44.The consequence is that the jurisdictional objection cannot succeed on the material presently before us. To be clear, we do not hold that the timelines prescribed by section 175 of the Act are flexible, nor do we depart from the principles articulated in Aprim Consultants Case and ELC Electroconsult Case. Rather, we hold only that, on the facts of this case as presented, it has not been established with sufficient certainty that the Appellant failed to comply with those timelines. Where there remains a plausible and unrefuted contention that the apparent tardiness was occasioned by the Court's own filing infrastructure, it would be unjust to deny a litigant access to the seat of justice on the basis of a factual conclusion that cannot confidently be made. We therefore decline to uphold the preliminary objection and proceed to determine the appeal on its merits. 45.We now turn to the merits. Before considering the specific issues raised in the appeal, it is necessary to set out the constitutional and statutory framework within which they arise. 46.The issues arising in this appeal fall to be determined against the backdrop of the constitutionalization of public procurement and the evolution of judicial review under the Constitution of Kenya, 2010. While the dispute originates from a procurement process, it ultimately implicates broader questions concerning the supervisory jurisdiction of courts over specialized statutory tribunals and the extent to which courts may interrogate the substance of administrative decisions without impermissibly assuming the role of primary decision-makers. 47.We begin with Article 227 of the Constitution. That Article provides:“When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective." 48.The significance of Article 227 of the Constitution is that it elevated public procurement from a matter of ordinary statutory administration into a constitutional function governed by constitutional values. Prior to the promulgation of the Constitution of Kenya, 2010, procurement disputes were largely approached as questions of compliance with statutory and regulatory requirements. Article 227 of the Constitution altered that landscape. Procurement decisions must now conform not only to the Public Procurement and Asset Disposal Act but also to the constitutional values of fairness, transparency, competitiveness, accountability and equal treatment. 49.It follows that procurement criteria are not mere administrative conveniences. They constitute the rules by which bidders enter and compete in the procurement process. Those rules serve a constitutional function. They ensure that all participants compete on an equal footing and that public contracts are awarded through a process that is transparent, predictable and fair but also ensures value for money. 50.A foundational principle of public procurement law is that tenders must be evaluated in accordance with the criteria disclosed to bidders in the tender documents. That principle is now embedded both in section 80 of the Act, which requires evaluation to be undertaken using the procedures and criteria set out in the tender documents, and in Article 227 of the Constitution, which demands a procurement system that is fair, equitable, transparent, competitive and cost-effective. The rationale is self-evident. Bidders are entitled to know in advance the standards by which their bids will be assessed and to compete on the basis of a common set of rules. Accordingly, while procuring entities and the Review Board may be required to interpret tender criteria in the course of the evaluation process, they may not introduce undisclosed criteria or materially alter disclosed criteria after bids have been submitted. To permit otherwise would undermine transparency, defeat the legitimate expectations of bidders, and compromise the equal treatment that Article 227 of the Constitution seeks to guarantee. 51.At the same time, procurement decisions frequently require the exercise of technical judgment. Tender documents often contain provisions whose application requires interpretation. Not every dispute concerning interpretation of a tender criterion amounts to a constitutional violation. The challenge for courts is therefore to distinguish between legitimate interpretation of disclosed criteria and unlawful alteration of those criteria. 52.The statutory framework established under the Act reflects those constitutional commitments. Section 80 of the Act requires evaluation of tenders in accordance with the procedures and criteria set out in the tender documents. The provision embodies a fundamental procurement principle: evaluation must remain faithful to the framework disclosed to bidders. Procuring entities are therefore constrained both by the statute and by the tender documents through which they communicate evaluation requirements to participants. 53.The Review Board occupies a central position within that framework. Established as a specialized tribunal, the Review Board is entrusted with resolving procurement disputes expeditiously and with the benefit of technical expertise. The jurisprudence of the superior courts has consistently recognized that the Board possesses institutional competence in matters of procurement evaluation and administration. Consequently, reviewing courts ordinarily exercise restraint before interfering with decisions that involve technical procurement judgments. 54.That restraint, however, is not absolute. Expertise does not confer immunity from constitutional or statutory scrutiny. Where the Review Board exceeds its statutory mandate, departs from disclosed procurement criteria, violates constitutional requirements, or acts irrationally, illegally or unfairly, the courts remain obliged to intervene. The supervisory jurisdiction conferred by Articles 23, 47 and 165 of the Constitution exists precisely to ensure that all public power, however specialized its source, remains subject to the Constitution and the law. 55.It is against that backdrop that the parties' extensive submissions on the scope of judicial review – and the second framed issue – whether the learned Judge erred in restricting judicial review to procedural review and thereby failed to engage with the Appellant's legality challenge - must be understood. 56.Historically, judicial review in Kenya was grounded in the common-law principles articulated in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, where Lord Diplock famously emphasized that judicial review was concerned with the decision- making process rather than the merits of the decision itself. 57.The promulgation of the Constitution of Kenya, 2010 transformed that understanding. Article 47 constitutionalized the right to fair administrative action, while Article 23 vested courts with broad remedial powers for the enforcement of constitutional rights. Judicial review ceased to be merely a common-law prerogative and became an instrument of constitutional supervision. 58.The evolution of that doctrine was explained by this Court in Suchan Case. In that case, the Court observed that judicial review under the Constitution is no longer confined to procedural scrutiny but may extend to examination of the legality, rationality and reasonableness of administrative action. The Court recognized that the Fair Administrative Action Act and Article 47 had expanded the traditional boundaries of judicial review while preserving the distinction between review and appeal. 59.The Supreme Court revisited the subject in Saisi Case. There, the Court emphasized that judicial review now derives normative force from the Constitution itself and not merely from common-law principles. The Court nevertheless cautioned against the temptation to transform judicial review into a mechanism for appellate reconsideration of every administrative decision. Judicial review remains concerned with legality and constitutional compliance rather than the correctness of the decision under challenge. 60.More recently, the Supreme Court reaffirmed those principles in the Dande Case. The Court reiterated that constitutional judicial review may, in appropriate circumstances, require examination of the substance of a decision where such examination is necessary to determine legality, rationality or constitutional compliance. At the same time, the Court emphasized that the reviewing court must not assume the role of the primary decision-maker. The inquiry remains directed at the lawfulness of the decision and not at whether the court would have reached a different conclusion. 61.At paragraph 78 of its judgment in Dande Case, the Supreme Court emphasized that “the entrenchment of judicial review under the Constitution of Kenya 2010 elevated it to a substantive and justiciable right under the Constitution” and that judicial review is therefore “no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution.” The Court further observed that Article 47 of the Constitution now guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. 62.Building on that premise, the Supreme Court acknowledged at paragraph 81 of the same decision that divergent views have emerged regarding the scope of judicial review under the Constitution. One school of thought maintains that judicial review remains concerned solely with the process by which a decision is reached and not its merits. The other maintains that constitutional judicial review may, in appropriate circumstances, involve a limited examination of the merits of a decision. The Supreme Court ultimately accepted the latter position, holding that the constitutionalization of judicial review has enlarged the supervisory role of courts beyond the confines of the traditional common-law model. 63.It is true that, at paragraph 85 of its judgment, the Supreme Court observed that where a party approaches a court under the Constitution alleging violation of constitutional rights or constitutional provisions, the court ought to undertake a merit review of the case, whereas proceedings brought under Order 53 of the Civil Procedure Rules without any constitutional claim may remain confined to review of the process and manner by which the impugned decision was reached. However, that observation must be understood in its proper context. The Supreme Court was addressing the procedural posture of the case before it and explaining why the appellants’ grievances had warranted a more searching review than the superior courts had undertaken. 64.In our respectful view, procurement litigation under section 175 of the Act does not fit neatly into either side of that binary. It is not ordinary judicial review under Order 53. Nor is it necessarily a constitutional judicial review in the conventional sense. For the avoidance of doubt, neither is it a plain vanilla judicial review action under the Fair Administrative Action Act. Rather, it is a statutory form of judicial review situated within a constitutionalized procurement framework. 65.As adumbrated above, Article 227 of the Constitution establishes the constitutional norms governing public procurement, requiring that public procurement systems be fair, equitable, transparent, competitive and cost-effective. The Act is Parliament's legislative implementation of that constitutional command. The Review Board itself is a creature of that constitutional-statutory framework, while section 175 of the Act establishes judicial review as the mechanism through which courts supervise compliance with that framework. 66.Properly understood, judicial review under section 175 of the Act is a sui generis species of constitutional judicial review. It is neither confined to policing procedural regularity in the narrow common-law sense nor intended to transform the High Court into an appellate procurement tribunal. Rather, its function is to ensure that procuring entities and the Review Board remain faithful to the constitutional, statutory and tender-based framework governing public procurement. Consequently, where it is alleged that a procuring entity or the Review Board has departed from the requirements of Article 227 of the Constitution, the Act, the Regulations or the Tender Document itself, a reviewing court may be required to engage with aspects of the substance of the impugned decision. But such engagement does not convert the proceedings into an appeal. The inquiry remains one of legality because the court's concern is not whether the decision-maker arrived at the correct result, but whether it acted within the limits imposed by law. 67.In the present case, the learned Judge was undoubtedly correct to caution against transforming judicial review into an appeal on the merits. The question is whether her conclusion that scrutiny of the Review Board's interpretation of the Tender Document would necessarily draw the court into the appellate realm is correct. The learned Judge reasoned that the Appellant was inviting the court to determine whether the Review Board's interpretation of “firm experience” was correct and concluded that such an inquiry amounted to a merits review that “cannot be countenanced by or determined before a Judicial Review Court.” With respect, that formulation framed the inquiry too narrowly. In the context of constitutionalized procurement under Article 227 of the Constitution, and judicial review under section 175 of the Act, the question is not merely whether the Review Board's interpretation was correct, but whether it remained faithful to the procurement framework established by the Constitution, the Act and the Tender Document. That inquiry may require a court to engage with aspects of the substance of the impugned decision. The critical distinction is that the court does so not to determine correctness, but to determine legality. 68.This distinction is particularly important in procurement disputes. Allegations that a procuring entity or the Review Board has employed undisclosed criteria, altered disclosed criteria, ignored mandatory provisions of a tender document, or otherwise departed from the procurement framework established by law cannot ordinarily be resolved by examining procedure alone. Determining whether such departures occurred may require a court to examine the content of the impugned decision and the tender criteria to which it relates. Yet that examination remains one of judicial review because its object is to ascertain legality rather than correctness. 69.Differently put, legality review may require a court to examine aspects of the substance of a decision. Indeed, there are situations in which legality cannot be assessed without some consideration of substance. The critical question is not whether the court examines substance, but why it does so. If the purpose is to determine whether the decision- maker remained within the limits imposed by the Constitution and the law, the inquiry remains one of judicial review. If the purpose is to determine whether the decision-maker reached the correct conclusion, the inquiry becomes an impermissible merits appeal. 70.In the instant case, a careful reading of the impugned judgment reveals that the learned Judge regarded the dispute as one concerning the correctness of the Review Board's interpretation of the Tender Document. In her view, determining whether the phrase "Specific Experience of the Firm" included experience acquired by a partner while practicing at a different law firm would require the court to decide which of two competing interpretations was correct. That exercise, the learned Judge concluded, would amount to re-evaluation of the tender and substitution of the court's assessment for that of the Review Board. It was on that basis that she declined intervention. 71.With respect, we consider that the learned Judge's characterization of the dispute requires closer examination. The question whether the Review Board has adopted the correct interpretation of a tender criterion is not necessarily the same as the question whether the tribunal has remained faithful to the tender criterion at all. The distinction, though subtle, is important. Consider, by way of illustration, a tender criterion requiring ten years' experience in a particular field. If an evaluation committee concluded that five years' experience was sufficient, the complaint would not merely concern interpretation. It would concern departure from the disclosed criterion itself. Similarly, if a criterion required experience in environmental litigation and an evaluator awarded marks on the basis of experience in commercial conveyancing, the resulting challenge would not simply be a disagreement regarding evaluation. It would raise a question whether the evaluator had remained within the confines of the disclosed criteria. 72.Such challenges have always been amenable to judicial review because they concern legality rather than correctness. They involve the question whether the decision-maker acted within the legal framework governing the procurement process. 73.The Appellant's complaint in the present case was, at least on its face, of that character. The Appellant consistently maintained that the Tender Document established two separate evaluative categories. One category concerned the experience of the bidding firm. Another concerned the experience of the individual advocates who would constitute the proposed legal team. According to the Appellant, the Review Board effectively merged those categories and thereby altered the procurement criteria after bids had been submitted. That complaint was capable of raising a legality question. Whether it ultimately succeeds is a different matter. The important point for present purposes is that the challenge could not be dismissed merely because it implicated interpretation of a tender criterion. The critical inquiry remained whether the Review Board's interpretation stayed within the boundaries of the Tender Document or crossed the line into alteration of those boundaries. 74.To that extent, we respectfully differ from the learned Judge. In our view, the legality challenge advanced by the Appellant warranted substantive consideration. The fact that resolving the challenge required examination of the tender criterion did not automatically transform the proceedings into a merits appeal. As the Supreme Court observed in the Dande Case, legality review may sometimes require examination of the substance of a decision where that examination is necessary to determine whether the decision-maker acted within lawful bounds. 75.Having said that, the conclusion that the challenge was amenable to judicial review does not determine the appeal. The question remains whether the Appellant has demonstrated the illegality alleged. Put differently, did the Review Board merely interpret the Tender Document, or did it unlawfully alter the evaluation criteria disclosed to bidders? 76.The Appellant's principal complaint was that the Review Board unlawfully rewrote the Tender Document by conflating two distinct evaluation criteria. According to the Appellant, the Tender Document deliberately distinguished between the experience of the bidding law firm itself and the qualifications and experience of individual advocates proposed for the assignment. However, the Review Board treated experience acquired by an advocate while practising in another law firm as constituting experience of the 4th Respondent firm, thereby collapsing the criterion relating to "Specific Experience of the Firm" into the separate criterion relating to the qualifications and competence of key personnel. The Appellant contended that, by doing so, the Review Board effectively introduced a new and undisclosed evaluation criterion after bids had closed; improperly awarded the 4th Respondent marks to which it was not entitled under the Tender Document; and thereby acted illegally, irrationally and in excess of its statutory mandate. 77.The Appellant's argument possesses an undeniable attraction. The Tender Document did not establish a single undifferentiated criterion concerning experience. Rather, it appears to have distinguished between the experience of the firm and the experience of the individual advocates who would comprise the proposed legal team. The Appellant therefore contends that once the Review Board permitted experience acquired by Mr. Ken Melly while practicing at Iseme, Kamau & Maema Advocates to count as experience of G&A Advocates LLP, it effectively collapsed two distinct evaluative categories into one. 78.As we observed earlier, procurement law places considerable emphasis on fidelity to disclosed criteria. The principle serves important constitutional values. Bidders are entitled to know in advance the standards by which they will be assessed. Equally, evaluators are not at liberty to adjust those standards after bids have been received. It is for that reason that courts have repeatedly invalidated procurement decisions founded upon undisclosed criteria or upon criteria materially different from those communicated to bidders. The Appellant’s appeal is pivoted on this jurisprudential truism. However, the principle that evaluators must remain faithful to disclosed criteria does not answer the question before us. The real dispute concerns the meaning of the criterion itself. Put differently, the controversy is not whether the criterion existed, but what the criterion meant. 79.The phrase employed in the Tender Document was “Specific Experience of the Firm.” Significantly, the Tender Document did not define the phrase. It did not expressly state whether experience acquired by a partner prior to joining the bidding firm could or could not be taken into account. Nor did it specify whether the criterion was confined to matters undertaken under the firm's current name, current partnership structure, or current legal identity. 80.The absence of such clarification is important. It means that the evaluators and, ultimately, the Review Board were confronted with an exercise that was not mechanical but one which required interpretation. It is at this point that the nature of professional partnerships becomes relevant. Unlike many commercial enterprises, a law firm does not derive its value primarily from physical assets, infrastructure, machinery or proprietary products. Its principal asset is professional expertise. The reputation and capability of a law firm are ordinarily inseparable from the knowledge, skill and experience of the advocates who constitute it. Clients do not typically retain law firms because of the furniture, office space or corporate structure. They retain them because of the professional competence embodied in the lawyers who practise through them. 81.This reality, as the Review Board reasoned, explains why legal practice differs from many other forms of commercial activity. When an advocate moves from one law firm to another, the advocate does not leave behind his or her professional experience. The knowledge acquired, cases handled, judgments obtained, arbitrations conducted and expertise developed remain attributes of the advocate. Indeed, it is often precisely because of such experience that the advocate is recruited by, or becomes a partner in, another firm. 82.The Review Board approached the criterion from that perspective. Its explicit reasoning at paragraph 86 of its decision of 9th March, 2026 was that experience acquired by a partner remains available to the law firm through which that partner presently practices. Consequently, where a partner has successfully conducted international arbitrations, the firm of which that partner forms part may legitimately represent itself as possessing that expertise. 83.Having concluded that the Appellant’s complaint is amenable to judicial review, it does not follow that the Court is at liberty to substitute its own interpretation of the Tender Document for that adopted by the Review Board. The distinction between judicial review and appeal remains critical. The question before us is not whether we would necessarily have reached the same conclusion as the Review Board had we been charged with evaluating the tenders in the first instance. Nor is it whether the interpretation urged by the Appellant is wholly devoid of merit or incapable of persuasion. Reasonable minds may differ on the proper construction of the relevant tender criterion. The task of a reviewing court is more modest. It is to determine whether the interpretation adopted by the Review Board was one that was reasonably open to it on the language of the Tender Document and the surrounding procurement framework, or whether it was so perverse, irrational, untenable or inconsistent with the governing instruments as to fall outside the bounds of lawful decision-making. It is only in the latter circumstance that judicial intervention would be warranted. 84.Applying that standard, we are unable to conclude that the Review Board's interpretation was perverse. Nor are we persuaded that it was irrational, legally unsustainable or otherwise outside the range of interpretations reasonably open to the Review Board. To the contrary, we are satisfied that the interpretation adopted by the Review Board was reasonably open to it. Our conclusion is informed by four interrelated considerations, each of which reinforces the view that the Review Board was engaged in an exercise of interpretation within the scope of its statutory mandate rather than an impermissible rewriting of the Tender Document. 85.First, the interpretation is grounded in the language of the criterion itself. Nothing in the Tender Document expressly prohibited consideration of experience acquired by partners prior to joining the firm. Had the Procuring Entity intended to impose such a restriction, it could readily have done so. Tender documents frequently define terms such as "firm experience," "corporate experience," or "experience of the bidder" with considerable precision. No such definition appears here. 86.Secondly, the Review Board's interpretation is consistent with the commercial realities of legal practice. To hold that professional experience ceases to have relevance the moment an advocate changes firms would be to adopt a conception of legal services divorced from the manner in which professional expertise is actually acquired and deployed. 87.Thirdly, the Review Board's interpretation does not render the distinction between firm experience and advocate experience meaningless. The two inquiries remain conceptually distinct. A criterion evaluating firm experience may legitimately ask whether the firm, through its partners and professionals, possesses a track record of handling particular matters. A criterion evaluating individual advocates may focus more specifically on the qualifications, specialization, seniority and role of particular members of the proposed team. The existence of overlap between those inquiries does not necessarily mean that they are identical. 88.Fourthly, and perhaps most importantly, the Review Board did not introduce a factor wholly external to the Tender Document. This is not a case in which evaluators awarded marks on the basis of a consideration never contemplated by the procurement framework. Nor is it a case in which a new criterion was invented after bids had been submitted. The Review Board was interpreting an existing criterion whose precise scope had not been defined. 89.That distinction is critical. Courts have rightly intervened where procuring entities introduce undisclosed criteria because such conduct undermines transparency and equality of treatment. However, the existence of a legitimate interpretive question is a different matter. Every procurement process involves some measure of interpretation. If every disagreement concerning interpretation were treated as evidence of illegality, judicial review would become indistinguishable from an appeal on the merits. In our view, the legality threshold is crossed only where the interpretation adopted is so disconnected from the language, purpose or structure of the Tender Document that it effectively amounts to creation of a new criterion. The present case does not reach that threshold. 90.We therefore conclude that although the Appellant raised a legitimate legality question, it has not demonstrated that the Review Board departed from the Tender Document or introduced an undisclosed criterion. The Review Board's interpretation was one reasonably available to it and remained within the four corners of the procurement framework; one that cannot be said to be perverse in any objective sense. 91.It follows that while we respectfully disagree with the learned Judge's suggestion that the dispute was incapable of engaging legality review, we ultimately arrive at the same destination: upon examination of the substance of the complaint by the Appellant, the alleged illegality is not established. The principal ground of appeal therefore fails. 92.We now turn to the Appellant's remaining complaints concerning the execution of the contract and the effect of the ongoing arbitration proceedings. 93.The Appellant further contends that the contract subsequently executed between the Procuring Entity and the 4th Respondent was unlawful because it was entered into during the pendency of statutory challenge proceedings under section 175 of the Act. According to the Appellant, the procurement framework contemplates a standstill period intended to preserve the efficacy of review mechanisms and prevent procuring entities from rendering procurement challenges nugatory through premature implementation. 94.The argument is not without conceptual force. Procurement review mechanisms would be substantially undermined if procuring entities could routinely rush to execute contracts before disputes are resolved. It is for that reason that procurement statutes commonly contain provisions designed to preserve the status quo during challenge proceedings. 95.The difficulty for the Appellant, however, lies in demonstrating that the contract in question was executed in violation of an operative statutory prohibition or subsisting court order. 96.The statutory framework draws a deliberate distinction between proceedings before the Review Board and proceedings before the courts. Under section 168 of the Act, the filing of a request for review before the Review Board triggers an automatic statutory standstill, prohibiting the procuring entity from entering into a contract pending the determination of the review. Parliament thus expressly provided for suspension of the procurement process during the pendency of review proceedings before the specialized tribunal. Significantly, however, section 175 contains no equivalent provision stipulating that the mere commencement of judicial review proceedings before the High Court automatically suspends implementation of the procurement decision.While the Act unquestionably contemplates restrictions on implementation during the review process, it does not follow that every judicial review application automatically freezes implementation of a procurement decision regardless of whether interim relief has been sought or obtained. The contrast between sections 168 and 175 is telling. Where Parliament intended an automatic standstill, it said so expressly. The absence of similar language in section 175 suggests that implementation is not suspended merely by the filing of judicial review proceedings unless the statute expressly provides otherwise or a court grants appropriate interim relief. 97.The consequence of such a construction would be significant and unwarranted. It would effectively permit every disappointed bidder to suspend implementation of a procurement process merely by commencing judicial review proceedings at the High Court. Such an outcome would sit uneasily with the legislative objective of expedition and finality that permeates the procurement statute. 98.In the present case, there were no orders staying implementation of the Review Board's decision pending determination of the judicial review proceedings. In those circumstances, we are unable to conclude that execution of the contract furnishes an independent basis for disturbing either the decision of the Review Board or the judgment of the High Court. 99.Finally, the Appellant also challenged the learned Judge's reliance upon public interest considerations arising from the ongoing arbitration proceedings. It was submitted that public interest cannot be invoked to sanitize illegality and that the existence of ongoing arbitral proceedings could not justify departure from constitutional and statutory procurement requirements. 100.We agree, as a matter of principle, that public interest cannot be employed as a shield for unlawful conduct. If a procurement process is shown to have violated the Constitution or the governing statute, the fact that implementation has commenced cannot by itself validate the illegality even if that meant loss of public funds. Constitutional compliance does not yield to administrative convenience. 101.However, that proposition must be properly understood. There is a material distinction between using public interest to determine whether illegality exists and using public interest to fashion an appropriate remedy once the legality inquiry has been concluded. Courts have long recognized that public law remedies are discretionary. The existence of a legal wrong does not invariably dictate a single remedial outcome. In determining appropriate relief, courts may properly consider the stage reached by the impugned process, the consequences of disruption, the interests of third parties, and the broader public interest. 102.In the present case, the Procuring Entity and the 4th Respondent placed considerable emphasis on the fact that representation of the Republic in the LCIA proceedings had already commenced and that disruption of those arrangements could potentially prejudice the Republic's interests in the arbitration. Those considerations were undoubtedly relevant to the remedy. They were not, however, determinative of legality. 103.In fairness to the learned Judge, we do not read the impugned judgment as holding that public interest cured any established illegality. Rather, the learned Judge concluded that no illegality had been demonstrated and observed, in addition, that implementation of the procurement process and the ongoing arbitration reinforced the reluctance of the Court to intervene. 104.Having independently concluded that the Appellant has failed to establish that the Review Board acted unlawfully, the issue of public interest ultimately is moot. It becomes unnecessary to determine what remedy would have been appropriate had illegality been established because the foundational premise for such relief has not been made out. 105.Drawing the threads together, our conclusions may be summarized as follows.i.First, that the judicial review contemplated under section 175(1) of the Public Procurement and Asset Disposal Act is sui generis constitutional judicial review in which a court may, in limited fashion, interrogate the substance of a procurement decision where necessary to determine whether a procuring entity or the Review Board has remained faithful to the Constitution, the tender criteria and the governing statutory framework.ii.Secondly, we find that the Appellant’s challenge in the instant case was capable of raising a legitimate legality question under Article 227 of the Constitution and section 80 of the Public Procurement and Asset Disposal Act and should have been considered on its merits.iii.Thirdly, having examined the substance of that complaint on its merits, we are nevertheless satisfied that the Review Board did not cross the line from interpretation into alteration of the Tender Document. The phrase "Specific Experience of the Firm" was not expressly defined in the Tender Document. Faced with that ambiguity, the Review Board adopted an interpretation that professional experience acquired by a partner remains available to the law firm through which that partner presently practises. Whether that interpretation was the only available interpretation is beside the point. The critical consideration is that it was a rational and legally permissible interpretation open to the Review Board. Consequently, it was correct for the learned Judge to refuse to quash or to set aside the decision of the Review Board.iv.Fourthly, the Appellant has not demonstrated that the execution of the contract between the Procuring Entity and the 4th Interested Party occurred in violation of an operative statutory prohibition or subsisting court order. The contract-execution argument therefore does not furnish an independent basis for appellate intervention.v.Finally, while public interest considerations cannot sanitize illegality, they would in any event become relevant only after a finding of illegality. Since no such illegality has been established, those considerations do not affect the outcome of the appeal. 106.In the result, and for the reasons we have given, we find no basis upon which to interfere with the judgment of the High Court. Accordingly, this appeal is hereby dismissed. The judgment of the High Court (T.W. Ouya, J.) delivered on 4th May, 2026 in Judicial Review Application No. E078 of 2026 is hereby affirmed. 107.As the appeal raises important questions concerning the scope of judicial review under Articles 47 and 227 of the Constitution and the relationship between legality review and procurement evaluation, we direct that each party shall bear its own costs of the appeal. 108.Those shall be the orders of the Court. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE, 2026.A. K. MURGOR.................................JUDGE OF APPEALJOEL NGUGI.................................JUDGE OF APPEALMUNYAO SILA......................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR