https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12187

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW MISCELLANEOUS NO. E095 OF 2026** **PAPATON SECURITY SERVICES LIMITED…...……………………………………….…APPLICANT** **VERSUS** **PUBLIC PROCUREMENT** **ADMINISTRATIVE REVIEW BOARD………………………………………...……1ST RESPONDENT** **ACCOUNTING OFFICER,** **MASINDE MULIRO UNIVERSITY** **OF SCIENCE AND TECHNOLOGY.………………………………………...…...……2ND RESPONDENT** **MASINDE MULIRO UNIVERSITY** **OF SCIENCE AND TECHNOLOGY ……………………………………………..…….3RD RESPONDENT** **ISMAX SECURITY LIMITED……………..…………………………………..………..4TH RESPONDENT** **JUDGEMENT** 1. The Originating Motion herein, dated 15th June 2026, seeks the setting aside of the decision of the 1st respondent of 6th June 2026; and a consequential order, to compel the 1st respondent to order the 2nd and 3rd respondents to issue a notification of intention to award in favour of the applicant, to be followed by execution of a procurement contract between the 2nd and 3rd respondents and the applicant. It also seeks an alternative order, subsequent to the setting aside, of remittal of the matter back to the 1st respondent for consideration by a different panel. 2. The background given by the applicant is that the 2nd and 3rd respondents advertised a tender, number MMUST/834/0010/2025-26, for provision of security services, for a period of 1 year, with a closing date of 14th January 2026. The applicant got interested, and presented a bid. On 25th March 2026, the 2nd and 3rd respondents awarded the tender to the interested party, and served the other bidders with regret notifications. The applicant was aggrieved, on the basis that the respondents had breached Articles 47(1) and 227(1) of the Constitution and sections 79(1) of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, by failing to conform to all the eligibility and mandatory requirements as set out in the tender documents. The applicant accuses the 2nd and 3rd respondents of failing to conduct a process that was fair, equitable, transparent, competitive and cost-effective. 3. The 1st respondent has reacted to the application, vide an affidavit sworn by Mr. Philemon Kiprop, is Secretary, on 14th July 2026. It is averred that the 1st respondent acted strictly within the confines of its statutory mandate, in arriving at its decision. It is asserted that the due diligence exercise was undertaken lawfully and that the applicant was properly disqualified, on the basis of the adverse findings arising therefrom, and the 2nd and 3rd respondents lawfully undertook due diligence on the 4th respondent, before awarding the tender to it. It is asserted that the applicant introduced additional documents after the close of the tender process, and that that could not alter the outcome of the due diligence exercise. 4. The 2nd and 3rd respondents have also reacted to the application, vide an affidavit sworn by Dr. Ezekiel Chirchir Kipkoech, the Chief Procurement Officer and Head of Department, at the 3rd respondent, on 30th June 2026. It is averred that the applicant tendered its documents for consideration after the process, and they were served with a letter of regret or notification of intention to award, dated 6th March 2026. The applicant filed a request for review, with the 1st respondent, being PPARB No. 48 of 2026, where the 1st respondent ordered a re-evaluation exercise, which was undertaken and a subsequent notification of intention to award was made, dated 6th May 2026. The orders made in PPARB No. 48 of 2026 required completion of the exercise within 30 days, which were to lapse on 21st May 2026. It is averred that the applicant was disqualified at the due diligence stage, and 2 days before the 3rd respondent could sign the contract with the successful bidder, the applicant filed a second request for review, with the 1st respondent, being PPARB No. 68 of 2026. It is asserted that the entire process was carried out procedurally, and in accordance with the law, and every step was open and fair. 5. The matter was canvassed by way of written submissions. 6. The applicant submits that the documents, annexed to the replying affidavit of Mr. Kipkoech, on behalf of the 2nd and 3rd respondents, dated 30th June 2026, should be expunged from the record, for they were not signed nor sealed, contrary to what the law requires. Rule 9 of the Oaths and Statutory Declarations Rules and *Chris Munga N. Bichage & 2 others vs. IEBC & 2 others* [2017] KEHC 1912 (KLR) are cited. Secondly, it is averred that the decision of the 1st respondent was marred by procedural unfairness, bias and did not meet the requirements of fairness and reasonableness, required by the provisions of the Public Procurement and Asset Disposal Act and other applicable laws. It is submitted that the act of the 1st respondent, of disallowing the list of documents by the applicants, denied the applicant an opportunity to clearly state its case, on the allegations that had been levelled against it by the 2nd and 3rd respondents, to effect that it had failed the due diligence test. It is asserted that the applicant had presented the lowest and most responsive bid, with a tender sum of Kshs. 32,296,024.34, and had a legitimate expectation that the 1st respondent would order the 2nd and 3rd respondents to proceed and award the tender to it. *Republic vs. PPARB & 2 others ex parte Coast Water Services Board* [2016] eKLR is cited. 7. The 1st respondent submits that the substantive grounds advanced by the applicant do not reach the threshold, for grant of judicial review orders, and cites *Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited* [2002] eKLR. It is asserted that the 1st respondent considered the complaint filed by the applicant, and found that the 2nd and 3rd respondents had lawfully proceeded to undertake due diligence on the 4th respondent, before awarding the tender to it. On the rejection of the list of documents of the applicant, by the 1st respondent, it is submitted that the rules of the 1st respondent do not permit introduction of fresh evidence after the close of pleadings. It is asserted that the 1st respondent complied with section 6 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, and argued that the right to be heard is not a right to dictate procedure by which the tribunal is to reach is conclusion. *Judicial Service Commission vs. Mbalu Mutava & another* [2015] eKLR is cited to support the argument that a statutory body has discretion to adopt any fair procedure appropriate to its task, and it does not have to follow a particular procedure simply because the affected party demands it. It is asserted that the decision of 9th June 2026 was lawful, rational and procedurally fair. 8. The 2nd and 3rd respondents submit that the parameters of judicial review are set out in *Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited* [2002] eKLR, with respect to it being concerned with the decision-making process itself, rather than the merits of the decision, and that the court concerns itself with issues around jurisdiction, fair hearing, and questions around whether the tribunal took into account relevant or irrelevant matters, emphasising that the court does not sit on appeal to that decision. It is argued that the application should have been an appeal, and not judicial review. It is pointed out that the prayers themselves point to an appeal, for they seek substitution of the decision of the 1st respondent with that of the court. *Republic vs. Commissioner of Customs Services Ex parte Africa K-Link International Limited* [2012] eKLR is cited in support. It is submitted that it has not been demonstrated that the decision of the 1st respondent is *ultra vires*, made in bad faith or for ulterior motives. 9. Having reviewed the filings herein, being the Originating Motion, the affidavits supporting it, the affidavits sworn against it, the annextures to the various affidavits, as well as the written submissions filed to argue the respective positions taken by the parties, my persuasion is that there is only 1 issue to be determined, and that is whether the applicant is entitled to the orders sought herein. 10. These are judicial review proceedings. Judicial review targets a decision or proceedings, with a view to either quash or prohibit it or them, and, in other cases, it seeks to compel performance of a public duty. What is sought herein are orders to compel and to quash. The decision targeted is that made on 9th June 2026, in proceedings conducted in PPARB No. 68 of 2026. 11. By way of background, the 3rd respondent invited tenderers to submit bids for tender number MMUST/834/0010/2025-26, for provision of security services. The tender was scheduled to close on 14th January 2026. 7 entities, including the applicant and the 4th respondent, placed bids. Upon preliminary evaluations 3 bids were found to be responsive, including that by the applicant and the 4th respondent, and were advanced to the next stage. At the technical evaluation, all 3 bids were also found to be responsive. At the financial evaluation, the 4th respondent was found to be the lowest evaluated responsive bidder, at Kshs. 34,566,000.00, and it was recommended that the award be made to it. 12. The applicant was aggrieved by that process, and filed Request for Review, in PPARB No. 48 of 2026. It was found and held that the applicant had been improperly disqualified at the preliminary evaluation stage, having submitted all the documentation required under the tender document, which is curious, as the applicant had passed the preliminary and technical evaluations, and was only disqualified at the financial evaluation. It was also found and held that no reasons for disqualification were given in the notification of the award. It was held that the evaluation of the bid by the applicant was not conducted in accordance with the law, as the said bid was responsive, based on the reasons advanced for its disqualification, which was curious given the finding and holding that no reasons had been given in the notification. The request for review was allowed, and the tendering process, culminating in the notification of award of 9th March 2026, was nullified and set aside. The 2nd and 3rd respondents were directed to reconvene the evaluation committee, admit the applicant for the preliminary evaluation stage, and to re-evaluate the tender. 13. Subsequent to the determination of 17th April 2026, in PPARB No. 48 of 2026, the evaluation committee of the 2nd respondent was reconvened, for the purpose of re-evaluating the bids. The re-evaluation was conducted in 3 stages, being the preliminary/mandatory evaluation, the technical evaluation and the financial evaluation. At the technical stage, the bid by the applicant was found responsive, alongside 2 others, and was progressed to the next stage. At the financial stage, it was that by the applicant that was found most responsive, on account of being the lowest evaluated responsive bid, at Kshs. 32,296,024.34, subject to due diligence. Due diligence was subsequently conducted, on the applicant, and it was disqualified. 14. The applicant then filed a request for review, in PPARB No. 68 of 2026, and the 1st respondent found and held that due diligence on the applicant was conducted, in accordance with section 83 of the Public Procurement and Asset Disposal Act, and that there was no procedural impropriety, and that there was justification for the conclusion that the applicant had failed the due diligence. The claim in PPARB No. 68 of 2026 was dismissed. 15. The judicial review proceedings herein turn purely on the matter of the due diligence. That issue of due diligence did not arise at the first evaluation, which was done after the tender submission closed on 14th January 2026, and the bids were opened. From the summaries of the 1st respondent, in PPARB No. 48 of 2026 and PPARB No. 68 of 2026, the 3 bids cleared after the preliminary evaluation, were subjected to the technical evaluation, which the applicant and the 4th respondents cleared, after which they were subjected to financial evaluation, at which stage the applicant, who had made the lowest bid was disqualified, and the 4th respondent, who had made a higher bid was evaluated as the lowest responsive bidder, and it was recommended that the award be given to it. No reasons were given for the disqualification of the applicant at that stage. 16. When the matter was escalated to the 1st respondent, in PPARB No. 48 of 2026, it was ruled that, indeed, the bid by the applicant was responsive all through, that is at the preliminary evaluation stage, and at the technical evaluation and the financial evaluation, and the applicant ought to have been declared the lowest evaluated responsive bidder. It was on that account that it was concluded that the evaluation did not comply with the law and the tender documents, hence the nullification of the process. 17. The matter of due diligence was not before the 1st respondent in PPARB No. 48 of 2026. It was not raised by either party. It was introduced by the 1st respondent, when it suggested that the evaluation done under section 80 of the Public Procurement and Asset Disposal Act is preliminary, and that that under section 83 of the Public Procurement and Asset Disposal Act was final and somewhat mandatory. 18. When the second evaluation was done, subsequent to the orders in PPARB No. 48 of 2026, the bid by the applicant was found to be the most responsive, of the 3, including that by the 4th respondent. It passed the preliminary evaluation, the technical evaluation and the financial evaluation. That bid had failed at the financial evaluation previously for undocumented reasons. It was found to be the lowest evaluated responsive bid at the repeat evaluation. It was recommended for award, subject to due diligence. In the first evaluation exercise, the 4th respondent having been adjudged the lowest evaluated responsive bid, was not subjected to due diligence. The applicant was, apparently, at that time, disqualified without any reasons, and the award recommended to the 4th respondent. No due diligence was done on the applicant and the 4th respondent at that time. 19. The determination of the request for review, in PPARB No. 68 of 2026, was based solely on the due diligence exercise that was conducted after the second evaluation, it was done because the 1st respondent recommended it in PPARB No. 48 of 2026. 20. The conduct of due diligence is not a secondary evaluation of the tender. It is, therefore, not a mandatory exercise, under section 83 of the Public Procurement and Asset Disposal Act. It is conducted at the discretion of the evaluation committee, that is where the evaluation committee deems it fit. When the initial evaluation was done, the evaluation committee did not deem it necessary, and dismissed the bid by the applicant without conducting it. It was resorted to, at the second evaluation, on the recommendation of the 1st respondent, rather than at the discretion of the evaluation committee, and it, curiously, favoured the bidder who had improperly benefitted from the evaluation exercise at the first instance, over the bidder that the impropriety had disadvantaged. Fairness and justice would have been served if the entire process was nullified, and commenced afresh, for the exercise had started on a wrong footing. 21. I am of the persuasion that the entire tendering process was flawed. The effort to correct it, in PPARB No. 48 of 2026, compounded the flaws, after discretion was taken away from the evaluation committee, by the direction to subject the bid by the applicant to due diligence, in circumstances where the evaluation exercise, the subject of PPARB No. 48 of 2026, had been tainted by bias in favour of the 4th respondent. Ordering a partial repeat of an exercise, that was already tainted with impropriety, was bound to produce unfair results. The proceedings, in PPARB No. 68 of 2026, were tainted by the outcome, in PPARB No. 48 of 2026, which pointed the 2nd and 3rd respondents to due diligence, when that exercise was not in contention in PPARB No. 48 of 2026, and when it was not the consideration upon which the applicant had been disqualified in the first instance. 22. The originating motion invites me to set aside the decision of 9th June 2026, which I hereby do, in terms of prayer 3, for the reasons given above. I hereby order cancellation of the notification of intention to award, dated 6th May 2026, and direct the 2nd and 3rd respondents to conduct a fresh tendering exercise, with respect to provision of security services. Each party shall bear their own costs. Orders accordingly. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 31ST DAY OF JULY 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Ms. L. Wafula, Legal Researcher.** **Advocates** **Mr. Mbaka, instructed by Omwando Mbaka & Company, Advocates for the applicant.** **Mr. Ali, instructed by the Attorney General, for the 1st respondent.** **Ms. Grace Mburu, Advocate, instructed by the 2nd and 3rd respondents.**