[2017] KEHC 2102 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 497 OF 2017

IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015

AND

IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS

BETWEEN

PRESTIGE MANAGEMENT SOLUTIONS LIMITED...................................APPLICANT

VERSUS

PUBLIC PROCUREMENT AND ADMINISTRATIVE

REVIEW BOARD …………………..........................................................RESPONDENT

PARITY PERFORMANCE AND COMPLIANCE LIMITED ...1ST INTERESTED PARTY

MINISTRY OF DEVOLUTION AND PLANNING.…......…...2ND INTERESTED PARTY

JUDGMENT

1. On 11th August 2017 Honourable Odunga J, Duty Judge in the Judicial Review Division granted to the exparte applicant herein Prestige Management Solutions Limited, leave to commence Judicial Review proceedings to challenge by way of certiorari the decision of the Public Procurement Administrative Review Board( Review Board) made on 31st July 2012 nullifying and ordering the 2nd interested party,( Ministry of Devolution and Planning ) as the procuring entity to start the tender process for consultancy services to design and develop a computerized Management Information System(MIS) for the Kenya Devolution Support Programme(KDSP)Tender No.MODP/SDD/RFP/15/2016-2017.

2. The substantive notice of motion was filed on 14th August 2017 in accordance with the order of leave made on 11th August 2017 cited above. The application is predicated on the statutory statement and verifying affidavit accompanying the application for leave and the annextures thereto.

3. The exparte applicant’s case is that on 2nd May 2017 the 2nd interested party ( Procuring Entity) invited parties to submit a proposal in respect of proposals for consultancy services to design and develop computerized Management Information System(MIS) for the Kenya Devolution Support Programme ((KDSP) Tender No. MODP/SDD/RFP/15/2016-2017. The exparte applicant submitted its proposal and the tender was opened on 22nd May 2017.

4. On 29th June 2017 the financial bids were opened and in both instances, representatives of the applicant and the 1st interested party Parity Performance and Compliance Limited were present.

5. That on opening the financial bids, it was apparent that the applicant’s financial bid was the lowest. That at that stage, the 1st interested party filed a request for review before the respondent raising only one ground namely, that the respondent had breached the Public Procurement and Asset Disposal Act, 2015 as read with Section 7(2) of the Fair Administrative Action Act, 2015 by failing to evaluate the proposals within 21 days.

6. According to the applicant, there was no claim that the 1st respondent had suffered or risked suffering, loss or damage due to the breach of a duty imposed on a procuring entity by the Act or Regulations by the failure to evaluate the tender within the 21 days as alleged and that neither did it seek administrative review within fourteen (14) days from the date of the lapse of the 21 days as required by Section 167(1) of the Public Procurement and Asset Disposal Act. It is claimed that despite the above shortcomings in the 1st interested party’s request for review, the Review Board allowed the request on 29th July 2017 and ordered that the 2nd interested party Procuring Entity start the tender process for the consultancy services for the advertised tender.

7. It is claimed that the respondents then made it impossible for the decision of 29th July 2017 to be availed to the parties despite frantic efforts to access it.

8. It is alleged that the said decision of 29th July 2017 is prima facie illegal, irrational, disproportional and oppressive to the extent that it seeks to annual a tender process for reasons that did not occasion any party to the tender process.

9. It is therefore claimed that the said decision is prima facie illegal, unreasonable, irrational, disproportional and oppressive to the extent that it leads to worse of consequences of parties being told to start the process afresh after each of the parties now knows the contents of each other’s technical and financial bids.

10. The applicant therefore believes that it is just and equitable and fair that the said decision of the respondent be quashed and set aside. The motion and chamber summons for leave were never supported by the impugned decision and it was deposed that despite written requests to the Board to avail the decision, the Board had adamantly refused to avail the decision.

11. The motion was opposed by the interested party and the respondent who contended that the application for leave was filed outside the 14 days stipulated in section 175(1) of the Public Procurement and Asset Disposal Act, 2015, among other serious objections on the merits of the motion for judicial review.

12. At the hearing of the substantive notice of motion where parties argued orally, highlighting their respective written submissions filed on record, this court heard of different dates on which the decision which was being challenged was made, and which the 2nd interested party finally annexed to its replying affidavit, asserting that the decision was made on 27th July, 2017.

13. The court, as a result, ordered that the record of proceedings of the Review Board be availed to this court for perusal and directions for fair administration of justice. The said order was extracted and served on the Review Board but as at the time of writing this judgment, the record of proceedings of the Review Board giving rise to the impugned decision have not been availed to this court in accordance with Article 165(6) and (7) of the Constitution.

14. That aside, before delving into the objections filed by the respondents and the interested party on the merits of the substantive notice of motion, this court is inclined first and foremost, to determine a preliminary question of whether the impugned decision was made on 31st July 2017 or 27th July 2017 or 29th July 2017 and whether the challenge herein was made within the 14 days of the decision and which is that 14th day?

15. The letter dated 3rd August 2017 written by the exparte applicant’s director Mr William Ndungu addressed to the Secretary of the Respondent Review Board is clear that the applicant who was the interested party was referring to the oral judgment of the Board Review rendered by the Review Board on 31st July 2017 in respect of the request for review No. 62/2017. Mr Ndungu was requesting for the copy of the typed judgment which was to be due not later than 2nd August 2017 at 2. 30pm. That letter was received by the Review Board on 3rd August 2017.

16. In the chamber summons for leave to apply, the exparte applicant sought to challenge the decision of the respondent made on 29th July 2017, not 31st July 2017, nullifying and ordering the 2nd interested party, as the Procuring Entity to start the tender process for consultancy services to design and develop Computerized Management Information System (MIS) for the Kenya Devolution Support Programme (KDSP) Tender No. MODP/SDD/PFP/15/2016/2017. The applicant also prayed that the grant of leave do operate as stay of implementation of the decision of the respondent made on 29th July 2017 impugned.

17. In the reliefs sought, the applicant was clear that the certiorari being sought was for purposes of quashing the decision of the respondent made on 29th July 2017 nullifying and ordering the Procuring Entity to start the tender process afresh.

18. The date of the alleged decision as cited in the substantive notice of motion dated 14th August 2017, is , however, charged to read 31st July 2017 and not 29th July 2017. It is the latter date’s decision that was the basis upon which the chamber summons for leave was made and upon which the learned Honourable Justice Odunga J granted leave to apply on 11th August 2017, and further proceeded to order that the leave so granted do operate as stay of implementation of the decision of the Review Board.

19. The record of proceedings of 11th August 2017 show that Mr Ongoya counsel for the applicant was personally present before Honourable Odunga J to argue the exparte chamber summons and he stated at page 2 of the hand written proceedings that the impugned decision was made on 29th July 2017 ordering for fresh tendering process.

20. When the respondent and the interested parties filed their respective responses to the substantive notice of motion, the 1st interested party also filed grounds of opposition and notice of motion dated 22nd August 2017 under certificate of urgency during the recess seeking that the leave and stay orders granted on 11th August 2017 be set aside and or vacated; the chamber summons dated 11th August 2017 be struck out; the notice of motion dated 14th August 2017 be struck out and costs be provided for.

21. The application was predicated on the grounds among others that the impugned decision of the Board was made on 27th July 2017 yet the chamber summons for leave was filed in court on 11th August 2017 which was outside the 14 days stipulated under Section 175(1) of the Public Procurement and Asset Disposal Act, 2015 which requires that a party who is dissatisfied with the decision of the respondent to file Judicial Review proceedings within 14 days of the decision and that Section 9(2) and (3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, 2010 bar courts from granting leave if an application is filed out of time; and that the applicant by concealing the decision from the court, had come to court with dirty hands and does not deserve the leave and stay order.

22. The 1st interested party annexed to the supporting affidavit thereof sworn by James Wangome its Chief Executive Officer, a copy of the decision in Review Board’s case No. 62/2017 Party Performance and Compliance Ltd and Ministry of Devolution and Planning, State Department of Devolution.

23. In that decision marked ‘JW1’, it is clear that the decision of the Board is dated 27th July 2017 as was later supplied to court a copy of complete decision by Mr Gachuba, counsel for the 1st interested party.

24. What then emerges, even without the proceedings and record of the Review Board being availed to this court as ordered is that there is no such decision of the Review Board made on 29th July 2017, the basis upon which leave and stay was granted on 11th August 2017 by Honourable Justice Odunga. It is the duty of the applicant to be certain of the date on which the impugned decision was made to enable the court exercise its discretion to grant or not to grant leave.

25. Where the court grants leave on the basis of a decision which is not in existence in the sense that the applicant is unable to prove that there was a decision made on 29th July 2017 capable of being challenged, the leave granted and stay issued are a nullity.

26. In addition, the applicant, after obtaining leave on the basis of facts presented before the court that the decision impugned was made on 29th July 2017, now altered that date to read 31st July 2017, yet the statutory statement and verifying affidavit accompanying the chamber summons for leave and stay all clearly assert that the impugned decision was made on 29th July 2017.

27. There was no attempt to amend these dates to accord with the dates of 31st July 2017, the date that the applicant claims the decision was orally made by the Review Board. Even if the amendment was sought, it would not cure the defect as leave had already been granted to challenge the decision of 29th July, 2017, which decision is non-existent. Neither of the parties alluded to this aspect of these proceedings, and which this court finds to be critical for the determination of the merits of the impugned decision.

28. It follows, therefore, that, whether the decision which is now dated 27th July 2017 was or was not availed to the exparte applicant as at 11th August 2017 when the applicant filed the application for leave and stay, and or whether the decision was made on 31st July 2017 or 27th July 2017, the notice of motion as filed and argued is incompetent before the court as it is predicated upon a decision which was and is not the same decision made on 29th July 2017 upon which leave of court was sought and granted on 11th August 2017 by Hon Odunga J.

29. It is for that reason that this court would not belabour wasting precious judicial time and resources delving into the issue of whether or not the leave application was filed within 14 days in accordance with Section 175(1) of the Public Procurement and Asset Disposal Act; or whether the decision was made on 27th July 2017 or 31st July 2017 and or whether failure by the Applicant to avail the decision of the Review Board to this court was fatal to these proceedings.

30. I am satisfied that the exparte applicant was not vigilant in conducting these proceedings by making the court ( Honourable Odunga J) believe that the impugned decision was made on 29th July 2017 only for the applicant to claim in the filed substantive notice of motion that the impugned decision which was not supplied to it by the Review Board was made on 31st July 2017.

31. The applicant is the author of its own misfortune for mixing dates thereby making it difficult for the court to consider the merits of the case. The notice of motion as filed cannot go beyond this stage on account of the contradictions pointed out above. The same is hereby struck out.

32. As there are serious issues touching on whether the impugned decision was made on 31st July 2017 or 27th July 2017 which issues remain unresolved, I order that each party shall bear their own costs of these proceedings which are hereby struck out.

Dated, signed and delivered in open court at Nairobi this 13th day of November 2017.

R. E. ABURILI

JUDGE

In the presence of:

Mr Otieno Mudany h/b for Mr Elisha Ongoya for the exparte applicant

N/A for the Respondents

N/A for interested party

CA:George