Panthers Power Technologies Limited v Public Procurement Administrative Review Board & 14 others

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Judicial Review Division** **HCJR No. E118 of 2026** **Between** **Panthers Power Technologies Limited……………………………………….….Applicant** **And** **Public Procurement Administrative Review board…………………………..Respondent** **And** **The Accounting Officer,** **Kenya Power & Lighting Company PLC…………………..……………1st Interested Party** **Kenya Power & Lighting Company PLC…………………….….…..…2nd Interested Party** **Corner Electrical Contractors Ltd…………………………….……3rd Interested party** **Diligent Supplies (K) Ltd………………………………………………..4th Interested Party** **Atecs Services Ltd……………………………………………………….5th Interested Party** **Takona Agencies Ltd………………………………………………...…6th Interested Party** **Zack General Contractors Ltd……………………………………….7th Interested Party** **Ephychris Enterprises Ltd……………………………………..…….….8th Interested Party** **Nimke Investments Ltd………………………………………….…..….9th Interested Party** **Vanectors Enterprises Ltd……………………………………………10th Interested Party** **Mariela Enterprises Ltd…………………………………….………….11th Interested party** **Nadir (K) Ltd………………………………………………...…...……12th Interested Party** **Anses Investment Co. Ltd……………………………………………..13th Interested Party** **Stelly Enterprises Ltd…………………..………………………….…..14th Interested Party** **JUDGMENT** **Background** 1. This suit was commenced by an Originating Motion dated 28 July 2026 brought pursuant to article 47 of the Constitution of Kenya, section 175 of the Public Procurement and Asset Disposal Act, section 7 of the Fair Administrative Actions Act and rules 11 and 13 of the Fair Administrative Actions Rules, 2024. It relates to the decision of the Public Procurement Administrative Review Board (the Respondent) dated 21 July 2026 (the impugned decision) arising from Review Application noumber 99 of 2026. The review application which is the subject of these proceedings was in respect of Tender No. KP1/9A.2/OT/001/PJT/25-26 for provision of labour and transport construction services. 2. In the impugned decision, the Respondent struck out the request for review on the grounds that the Applicant’s failure to join the successful bidders to the request for review rendered the request fatally defective and hence divested the Respondent of its jurisdiction. 3. Aggrieved by that decision, the Applicant seeks the following reliefs from this Court: 1. *Spent;* 2. *Spent;* 3. *That this Honourable Court be pleased to issue an order of certiorari, to call into this Honourable Court and quash the decision of the Public Procurement Administrative Review Board (the Respondent) dated 21.07.2026 in Public Procurement Administrative Review Board Application No. 99 of 2026, Panthers Power Technologies Limited vs. The Accounting Officer, Kenya Power and Lighting Company PLC & Others, in respect of Tender No. KP1/9A.2/OT/001/PJT/25-26 for provision of labour and transport construction services.* 4. *That this Honourable Court be pleased to remit the matter for reconsideration by the Respondent, on merit, and issuance of appropriate and effective relief(s), taking into consideration the judgment of this Honourable Court;* 5. *That costs of this Application and the Request for Review be provided for.* **The Applicant’s Case** 1. It is the Applicant’s case that the Respondent’s decision is susceptible to judicial review for being materially tainted by an error of law; by paying undue regard to technicalities; by being irrational and unreasonable in the circumstances; and, by offending the Applicant’s right to a fair hearing. The Applicant avers that even though Section 170(c) of the PPADA provides that the successful tenderers ought to be parties to a Request for Review, a failure to specifically name them as Interested Parties cannot be deemed to cause such a request to be fatally defective. The Applicant, therefore, contends that the Respondent’s decision to dismiss the request for review on this sole ground was irrational and unreasonable. 2. In any case, the Applicant contends, the mischief intended to be safeguarded against by 170 (c) - not to cancel a successful bidder’s bid without affording such a bidder a chance to be heard – is cured by the requirement on the Respondent to serve all successful bidders with a copy of any Request for review filed with the Board immediately the same is filed. The Applicant notes that the 13th and 14th Interested Parties, who were successful tenderers, participated in the proceedings before the Respondent as Interested Parties. 3. The Applicant also avers that the Respondent fell into error of law by misapplying case law from the Court of Appeal being the case of [***James Oyondi t/a Betoyo Contractors & another v El Roba Enterprises Limited & 8 others***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/916)***[2019] eKLR.*** In this case, the Applicant posits, the court pronounced itself solely on the issue of joinder of the Accounting Officer of the procuring Entity and the case had nothing to do with the issue of a successful tenderer. On the flipside, the Applicant contends, that its position was supported by another Court of Appeal authority being ***Civil Case No. E295 of 2023 concolidated with Civil Appeal No. E296 of 2023 Lake Victoria North Water Works Development Agency v. Toddy Civil Engineering Company Limited & others (the Toddy case)***which, according to the Applicant, speaks to the fact that a Request for Review cannot be found to be fatally defective for failure to join successful bidders as interested parties where the Request for review was served on the said parties and they chose to participate in the proceedings. 4. The Originating Motion is supported by the affidavit of Peter Kinyua Wachira – a director of the Applicant - sworn on 28 July 2026. Mr. Wachira sets out the procurement process in respect of Tender No. KP1/9A.2/OT/001/PJT/25-26 and its participation thereof as a bidder. He states that he learnt that the Applicant was an unsuccessful bidder on the grounds that the power of attorney it submitted was not signed by all the directors. This decision aggrieved the Applicant prompting the filing of the Request for Review dated 29 June 2026. He further contends that the request for review and the hearing notices were served by the Respondent’s secretary to all the participating bidders in the subject tender – which afforded them an opportunity to be heard. He further avers that the 13th and 14th Interested Parties who were not named as parties to the request for review actively participated in the proceedings by filing a notice of preliminary objection dated 3 July 2026 and a replying affidavit dated 13 July 2026, respectively. 5. Mr. Wachira contends that the failure to include the successful bidders as parties in the request for Review was cured by service of the said Request and hearing notices upon all the bidders by the Respondent’s secretary. Consequently, he avers that the Applicant was illegally removed from the seat of justice and therefore seeks orders of certiorari to quash the Respondent’s decision. **Responses** 1. The 3rd to 12th Interested Parties filed grounds in support of the Originating Motion dated 5 August 2026 averring that the impugned decision was materially tainted by an error of law and was made in blatant disregard to the established doctrine of *stare decisis*; that the same was arrived at by paying undue regard to technicalities; and that the decision was irrational and unreasonable, in the circumstances. 2. The Respondent opposed the Application through a replying affidavit sworn on 6 August 2026 by Mr. Philemon Kiprop – its secretary. Mr Kiprop contends that the instant application is an appeal against the respondent’s decision disguised as a judicial review application and hence the same should be declined, *in limine.* 3. On the substantive complaint raised by the Applicant, Mr. Kiprop contends that upon the filing of Request for Review No. 99 of 2026, he notified the 1st and 2nd Interested parties of the said filing and the suspension of the subject tender. He denies serving the appeal on all the successful bidders as alleged by the Applicant. In any case, he avers, the Respondent did not have information pertaining to the subject procurement proceedings or the outcome to be able to tell who the successful bidders were. He contends that it is after the 1st and 2nd Interested Parties had filed the confidential documents that he was able to notify all tenderers in the subject tender of the proceedings. This was on 13 July 2026. The hearing of the Request for review was conducted on 17 July 2026. 4. The Respondent further contends that it took into account the notice of preliminary objection by the 13th and 14th Interested parties and considered the rival submissions made by the parties and the provisions of sections 167 and 170 of the PPADA before rendering a decision dismissing the Request for review. The decision to dismiss the Request for Review was informed by the mandatory requirement of section 170. It was noted that the subject tender had 91 successful tenderers who had not been included in the Request for Review as parties. It was also noted that only two of those successful tenderers had participated in the review proceedings. The Respondent also avers that it was guided by legal precedent established by superior courts on the question of joinder of parties to proceedings before it for instance the decision of the Court of Appeal in [***James Oyondi t/a Betoyo Contractors & another v El Roba Enterprises Limited & 8 others***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/916)***[2019] eKLR.*** 5. The Application was also opposed by the 1st and 2nd Interested Parties who filed a replying affidavit sworn on 5 August 2026 by the 2nd Interested Party’s Supply Chain officer, Mr. Brian Etyang Okuro. Mr. Okuro avers that the onus of ensuring that the Request for review complied with the governing law rested upon the Applicant. The 1st and 2nd Interested parties defend the Respondent’s decision to dismiss the Request for Review and aver that the same is consistent with the law and jurisprudence established by superior courts. They, therefore, contend that the Applicant has failed to demonstrate how its rights were violated or how any statutory duty was breached. 6. On their part, the 13th and 14th Interested Parties filed a replying affidavit sworn on 4 August 2026 by Moses Kinyua – their appointed agent – opposing the application. They aver that section 170 of the PPADA seeks to protect the rights and commercial interests of successful tenderers because they stand to be directly and substantially affected by any determination and outcome of a request for review. They also contend that there is no dispute that the Applicant failed to join any successful tenderer as parties to the review proceedings. This, they aver, was done in spite of the Applicant’s knowledge of all the successful tenderers as seen in the notification of award dated 4 June 2026. They further contend that their participation in the review proceedings came about as a result of their own diligence. 7. It is further the 13th and 14th Interested Parties’ case that the requirement under section 170 (c) to join successful tenderers as parties is not a mere technicality or irregularity capable of being cured by belated or voluntary participation of the omitted party but rather a mandatory precondition that goes into the competence of a request for review. They contend that the failure to include successful tenderers is, therefore, a jurisdictional defect that goes to the root of the proceedings. They also aver that even if this Court were to grant the orders sought and remit the matter back to the Respondent for re-hearing, the Applicant would be obligated to file a fresh, properly constituted request for review which review would be time barred by virtue of section 167 (1) of the Act. They urge the court to dismiss the application. **Submissions** 1. The Application was canvassed by way of written submissions pursuant to the directions of the court. 2. The Applicant filed submissions dated 19 August 2026 where two issues are identified for resolution being: whether the Respondent’s decision dated 21 July 2026 violated the Applicant’s right to fair administrative action; and, whether the Applicant is entitled to the reliefs sought in the originating motion dated 28 July 2026. In support of the first issue identified, the Applicant relies on the case of ***Dande & 3 Others v. Inspector General National Police Service & 5 Others (Petition 6 (E007), 4 (E005) & 8 ( (E010) of 2022 (Consolidated) [2023] KESC 40 (KLR) (16 June 2023) (Judgment).*** It is the Applicant’s argument, relying on this authority, that since the application is founded on the violation of its right to fair administrative action under article 47 of the Constitution of Kenya by the Respondent, this Court has jurisdiction to conduct a merit review of the Respondent’s decision dated 21 July 2026. However, the Applicant refutes the suggestion by the Respondent that the present Application is an appeal. 3. The Applicant urges this Court to find that the Respondent fell into an error of law by failing to follow the ***Toddy case*** (supra) which, the Applicant argues, held that the failure to join a successful tenderer as a party to a request for review does not render the said request for review fatally defective especially when the said tenderer was served with the Request for Review, notified of its hearing and participated. The Applicant further submits that the Respondent failed to consider that all the successful tenderers were served with the request for Review and that the Applicant could not be faulted for the failure to participate for 89 of them. Reliance is placed on ***Union Insurance Co. of Kenya Ltd vs. Ramzan Abdul Dhanji Civil Application No. Nairobi 179 of 1998.*** 4. The Applicant further submits that the Respondent’s interpretation of section 170 (c) of the PPADA is not rationally connected to the purpose of the empowering provision thereby curtailing the Applicant’s right to fair hearing. The Applicant, therefore, argues that the Respondent’s decision was irrational and unreasonable that no person sitting in a similar position as that of the Respondent and properly applying his mind would have arrived at the same decision. 5. The Respondent filed submissions dated 19 August 2026 wherein it is argued that the Applicant has failed to demonstrate that the Respondent committed an error of law that goes to the jurisdiction of the tribunal. The Respondent, therefore, contends that the instant application is an appeal on its interpretation of the law disguised as a judicial review application. Reliance is placed on ***Republic vs. Kenya Power & Lighting Company Limited & Another [2013] eKLR.***The Respondent further submits that the Applicant has not demonstrated breach of any statutory provision or that the Respondent acted in excess or without jurisdiction to warrant the intervention of this court. 6. The 3rd to 12th Interested Parties filed submissions dated 17 August 2026 in support of the Application. In the submissions, they submit that the impugned decision violated the principle of *stare decisis* by departing from the decision of the Court of Appeal in the ***Toddy case*** *(supra)*. It is their argument that the ***Toddy case***explicitly found that a review application before the Board would not be fatal merely because a successful bidder was not named as a party to the application provided that the existence of the application and the date of the hearing of the application was brought to the attention of the successful bidder. They further submit that the Respondent’s decision paid undue regard to technicalities instead of assessing the mischief which section 170 (c) sought to prevent and analysing whether that mischief had been sufficiently prevented in this instance once all the successful bidders were notified of the review application. Reliance is placed on ***Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others Civil Appeal No. 228 of 2013.*** It is also argued that the decision was irrational and unreasonable in the circumstances. 7. In their submissions dated 20 August 2026, the 13th and 14th Interested Parties identified three issues for resolution being: whether the Honourable Court is vested with the jurisdiction to grant the orders sought by the Applicant; whether the Respondent acted irrationally, unreasonably and in error of the law; and, whether the Applicant is entitled to the reliefs sought. On the first issue, they submit that the instant application is an appeal in disguise to the extent that it seeks a different outcome on the merits of the Respondent’s decision. It is their argument that the application does not disclose any of the judicial review grounds to warrant this Court’s intervention. On the second issue, they argue that the court is enjoined to give effect to the ordinary, literal and grammatical meaning of a statutory provision as opposed to departing from that meaning. In this regard, they submit that section 170 of the PPADA provides in mandatory terms who the parties to a review “shall” be. This provision, they argue, is not a mere technicality or irregularity capable of being cured by the belated or voluntary participation of the omitted party but rather a mandatory precondition that goes into the competence of the request for review. They cite ***Keller Kustoms Kenya Limited v. Public Procurement Administrative Review Board & 3 Others [2025] KECA 243 (KLR)***and [***Republic v Public Procurement Administrative Review & 3 others; Metonia Enterprises Ltd (Ex parte) [2026] KEHC 12541 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12541/eng%402026-07-30)in support of the arguments. They, therefore, submit that the Applicant is not entitled to the reliefs sought. **Analysis and Determination** 1. It is apposite for me to set the parameters of my role in these proceedings as a judicial review court. Judicial review is concerned not with the merits of a decision but with the decision-making process. This court is acutely aware that its role is not to determine whether it would have reached a different conclusion from the impugned decision but it has a duty to determine whether the Respondent acted lawfully, rationally and within the confines of its statutory mandate. [See, ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR*].** Therefore, while this inquiry is not for the purposes of determining whether this Court would have reached a different conclusion, it is necessitated to ensure legal and constitutional compliance of the impugned decision. In [***Sintmond Group Ltd v Procurement Administrative Review Board & 3 others [2026] KECA 1334 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1334/eng%402026-07-10)***,***the Court of Appeal was emphatic that, *“Courts are entitled – and, indeed, are obligated – to undertake sufficient substantive scrutiny to determine legality, rationality, and constitutional compliance.”* 2. The sticking issue in these proceedings is whether the decision of the Respondent which struck out the Applicant’s Request for Review on the grounds that it did not include the successful tenderers violated the Applicant’s rights to fair administrative action. Related to this question is whether the Applicant has made out a case for grant of the orders sought. 3. The determination of this issue turns principally on Section 170 of the PPADA. It provides as follows: *The parties to a review shall be—* *(a) the person who requested the review;* *(b) the accounting officer of a procuring entity; and* *(c) the tenderer notified as successful by the procuring entity.* 1. The plain reading of this provision is that an applicant who files a request for review is required to include, among other parties, the successful tenderers as parties to that application. The provision ensures that a successful tenderer whose interests are likely to be affected by the outcome of the request for review have an opportunity to take part in the proceedings before that determination is made by the Board. This gives effect to the right to a fair hearing which is recognised in our Constitution under Article 50(1) as well as the principles encapsulated under Article 227 of the Constitution. It goes without saying that there can’t be any quarrel with this statutory requirement. 2. The dispute before court is, however, different. Whereas all the parties acquiesce to the principle protected by section 170 (c) of the PPADA, there is divergence on what interpretation this provision should receive *vis-à-vis* the competence of proceedings when there has been no compliance. The Applicant concedes that it did not join the successful tenderers in the request for review but contends that the successful tenderers were served with the said request with an invitation to file their responses, if any. This, the Applicant, argues, cured the failure to join them as parties to the review. This position is supported by the 3rd to the 12th Interested Parties. 3. On the part of the Respondent and the 13th and 14th Interested Parties, this omission was fatal to the proceedings and could not be cured by any subsequent participation by the successful tenderers who had been omitted. They aver that this rendered the proceedings to be incompetent and thus the Respondent did not have jurisdiction to proceed. 4. This provision must be understood in the context of the nature of proceedings under the PPADA and the constitutional imperatives under article 227 of the Constitution. There is a deliberate effort under the PPADA to ensure that disputes concerning procurement proceedings are conducted in an expeditious manner. As has been variously recognised by the superior courts, this is to ensure that public projects are not stalled. Gatembu, JA (dissenting) expressed himself in [***AL Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 others***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/565)[2017] eKLR, as follows on the strict timelines under section 175 of the PPADA: *136. Section 175 of the Act as a whole provides for an elaborate time bound process for escalating the dispute from the Review Board (which must complete its review within 21 days after receiving the request), to seeking judicial review to the High Court (which must be done within 14 days from the date of the decision of the Review Board): to the High Court (which has 45 days such application to make its decision). A person aggrieved by the decision of High Court may appeal to the Court of Appeal within 7 days of the High Court decision. The Court of Appeal shall make a decision within 45 days which decision shall be final.* *137.The importance of the timelines is buttressed by Section 175(5), which provides that the decision of the Review Board shall be final and binding to all the parties should the High Court or the Court of Appeal fail to make a decision within the prescribed timelines.* 1. Contextually, therefore, a reading of section 170 (c) must take into account the nature of the proceedings under section 175 of the PPADA. A dissatisfied party must move with speed to challenge a decision of a procuring entity or the process before the Board and the Board is expected to render a decision within a period of 21 days from the date of filing of the request for review. It follows then that the period available to the parties to the request for review to file their responses and the Board to render a decision is limited. A day in this process is a long time. Inevitably, a party who gets notified of these proceedings even a day later than they should have been notified will be playing catch-up with the other parties who had notice of the proceedings immediately they were filed.It is also noteworthy that proceedings before the Board are highly technical and require the affected parties to prepare adequately in order to defend their positions. 2. The party seeking a review of a procuring entity’s decision or process, therefore, is under a statutory duty to include all the parties in such a request as required under section 170, where they are known. In the instant case, for instance, the Respondent’s position is instructive that at the time a request for review is filed, the Respondent does not know who the successful tenderer is until the procuring entity has filed the confidential documents as required. This court does not, therefore, accept the Applicant’s argument that the successful tenderers were immediately notified of the proceedings and the hearing date. This was done after the confidential reports had been filed. Paragraph 23 of the impugned decision indicates that the successful tenderers were served by the Respondent’s secretary on 13 July 2026. This was 13 days after the Request for Review had been filed and only 4 days before the hearing which was scheduled for 17 July 2026. In other words, more than half the period required for determination of the request had lapsed when the successful tenderers were notified of the existence of the request. 3. Nevertheless, the point of contention is whether having been notified of the proceedings the failure to include the successful tenderers had been cured. The *sui generis* nature of the dispute resolution proceedings under the PPADA leave no doubt that courts must interpret the provisions of the law in a manner that recognises the contextual underpinning of the law and to give effect to article 227 of the Constitution. In my view a reading of the law does not give any wiggle room to salvage proceedings which fail to comply with the strict requirements. The Board draws its jurisdiction from the PPADA and such jurisdiction must be exercised in strict compliance with the law. Parties appearing before the Board must equally comply with the statutory requirements for filing of applications. As recognised by the Court of Appeal in [***James Oyondi t/a Betoyo Contractors & another v El Roba Enterprises Limited & 8 others***](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/916)***[2019] eKLR,*** *“When a statute directs in express terms who ought to be parties, it is not open to a person bringing review proceedings to pick and choose, or to belittle a failure to comply.”* 4. While dealing with a failure to include the accounting officer of a procuring entity in a request for review, the Court of Appeal in [***Keller Kustoms Kenya Limited v Public Procurement Administrative Review Board & 3 others [2025] KECA 243 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/243/eng%402025-02-17)rendered itself as follows: *46. Our reading of sections 168 and 170 of the Act, regulation 205(1) of the Regulations and section 31 of Cap. 2, as well as the afore-cited judicial authorities, leaves no room for any doubt that the appellant’s failure to comply with the mandatory provisions of section 170 of the Act and name the 2nd respondent’s Accounting Officer in its Request for Review was fatal and rendered its Request incompetent. Accordingly, the appellant’s contention that the 1st respondents’ decision was not according to law does not hold.* 1. Considering that section 170 (b) (in regard to the accounting officer of the procuring entity) and 170 (c) (in regard to the successful tenderer) fall under the same provision for parties to a request for review, it follows that the reasoning in ***Keller Kustoms Kenya Limited*** is applicable to this case, by analogy. A failure to include a successful tenderer in a request for review renders the request fatally incompetent. 2. Furthermore, it should be borne in mind that proceedings under the PPADA are not governed by the Civil Procedure Act and Rules thereunder. Disputes arising thereunder are governed by a specialized statutory regime characterized by strict timelines, public interest considerations and expressly prescribed parties. Consequently, principles relating to misjoinder and non-joinder in ordinary civil proceedings cannot be imported into proceedings under the Act in a manner that defeats the express intention of Parliament. [See, [***Republic v Public Procurement Administrative Review & 3 others; Metonia Enterprises Ltd (Ex parte) [2026] KEHC 12541 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12541/eng%402026-07-30)**].** 3. Although the Applicant asserts that the Board ignored judicial precedence from the Court of Appeal allegedly in the case of ***Civil Case No. E295 of 2023 consolidated with Civil Appeal No. E296 of 2023 Lake Victoria North Water Works Development Agency v. Toddy Civil Engineering Company Limited & others,*** that decision was not availed to this court and all efforts to trace the same have not borne any fruit. It is the duty of counsel who wishes to rely on a particular authority to avail the same to the court. This court is, nevertheless, guided by the recent authority from the Court of Appeal in ***Keller Kustoms Kenya Limited (supra)***on this question. 4. The Applicant’s failure to comply with section 170 of the PPADA, therefore, rendered the proceedings fatally incompetent and the Board was obliged to decline jurisdiction. The admitted failure to include the 91 successful tenderers constituted a substantive jurisdictional defect. The decision by the Respondent to strike out the Request for Review no. 99 of 2026 was lawful and did not violate the Applicant’s rights to fair administrative action as alleged. 5. Having found that the Applicant has failed to establish illegality, irrationality or procedural impropriety as pleaded, it follows that the judicial review remedies sought are unavailable. Accordingly, the Originating Motion dated 28 July 2026 is hereby dismissed and the interim orders issued herein are hereby discharged. Parties shall bear their own costs. **Dated** and **Delivered** at **Nairobi** this **10th** day of **September,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered in the presence of:*** ***Advocates:*** ***Mr. Oduor B.O. for the Applicant*** ***Mr. Idris h/b for Mr. Munene for the Respondent*** ***Ms. Kihara for the 1st & 2nd Interested Parties*** ***Ms. Mudeizi for the 13th and 14th Interested parties*** ***Court Assistant*** ***Ms. Linda Nyawira***