https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12190

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW NO. E212 OF 2026** **REPUBLIC……………………………………………………………………..………. APPLICANT** **VERSUS** **THE PROCUREMENT ADMINISTRATIVE** **REVIEW BOARD…………………………………………………………..…1ST RESPONDENT** **DIRECTOR GENERAL,** **COMMUNICATIONS AUTHORITY OF KENYA………………..….2ND RESPONDENT** **COMMUNICATIONS AUTHORITY OF KENYA…………..……….3RD RESPONDENT** **SALAAM TECHNOLOGIES LIMITED……………………….……INTERESTED PARTY** ***EX PARTE:* BUFFALO PRODUCTIONS LIMITED** **JUDGEMENT** 1. The *ex parte* applicant moved this court by way of a motion, dated 26th June 2026, seeking an order of *certiorari*, to quash the decision of the 1st respondent, delivered on 5th June, 2026, dismissing the Request for Review, in PPARB No. 66 of 2026, by the *ex parte* applicant, dated 15th May 2026; an order of prohibition, to prohibit the interested party from signing any contract or supplying any goods in relation to open national Tender No. CA/SCM/OT/01/2025-2026; an order of prohibition, to prohibit the respondents and the interested party, their officers, agents or employees from relying on the ruling of the 1st respondent, delivered on 5th June 2026 in PPARB Application No. 66 of 2026; an order of *mandamus*, to compel the 3rd respondent to produce the tender opening minutes; an order that the grant of leave to commence Judicial Review proceedings do operate as a stay of the award by the 3rd respondent, and implementation of the decision in PPARB No. 66 of 2026; and costs of the application. 2. The *ex parte* applicant states that the 2nd and 3rd respondents invited bids in respect of Tender No. CA/SCM/OT/O1/2025-2026, for provision of a Cyber Ranges Simulation Platform, to which the *ex parte* applicant duly submitted a bid. It was notified, vide a letter dated 29th April 2026, that it had been disqualified from the process, leading to the filing of PPARB No. 66 of 2026, on 15th May 2026, against the decision of the 2nd respondent, and the same was dismissed on 5th June, 2026. The *ex parte* applicant avers that the 1st respondent unreasonably exercised its powers, and its conduct was irrational, and that the conduct and impugned decision of the 1st respondent violated the *ex parte* applicant’s rights under Article 47, 50 and 227 of the Constitution, undermining the *ex parte* applicant’s right to a fair hearing. It is averred that the decision of the 1st respondent was tainted with illegality and unreasonableness, and breached the *ex parte* applicant’s legitimate expectations, and contravened the provisions of the Public Procurement and Asset Disposal Act, Ca. 412C, Laws of Kenya. 3. In opposing the application, the 1st respondent has filed a replying affidavit, sworn on 14th July 2026, by Mr. Philemon Kiprop, a procurement professional, serving as the Secretary of the 1st respondent. It is deponed that the *ex parte* applicant’s challenge of the 1st respondent’s decision, dated 5th June 2026, arising from PPARB No. 66 of 2026, is misconceived, devoid of merit and unsustainable in law. It is contended that in reaching its decision, the 1st respondent considered the pleadings filed by the parties, their respective submissions, the confidential procurement records furnished by the 3rd respondent pursuant to section 67(3)(e) of the Act, the *ex parte* applicant’s tender document and the Act before rendering the decision. 4. It is stated that the *ex parte* applicant had failed to comply with mandatory requirements of the tender document, hence the 1st respondent concluded that the *ex parte* applicant’s bid had been lawfully found non-responsive. It is contended that the 1st respondent had further found that the deficiencies identified related to substantive mandatory requirements and were, therefore, incapable of being cured as minor deviations under section 79 of the Act. It is further stated that, upon considering all the material placed before it, and applying the relevant provisions of the Act, the tender document and the applicable legal principles, the 1st respondent found the *ex parte* applicant’s bid had been evaluated substantially in accordance with the law and the tender document. It is further stated that the *ex parte* applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety or unfairness in the manner in which the 1st respondent considered and interrogated the evidence, documents, pleadings in arriving at its decision in PPARB No. 66 of 2026. 5. The 2nd and 3rd respondents filed a replying affidavit, sworn on 3rd July 2026, by Mr. David Mugonyi, the 2nd respondent herein and the Director General of the 3rd respondent. It is contended that the 1st respondent was better suited to determine the responsiveness of the *ex parte* applicant’s bid. It is averred that the 3rd respondent received 10 bids, which were subjected to evaluation, and the *ex parte* applicant’s bid was found to be non-responsive at the technical capacity stage. It is further averred that, upon conclusion of the process, the 3rd respondent wrote an intention to award letter, dated 29th April, 2026, to the interested party, and further wrote letters of regret, dated 29th April 2026, addressed to the unsuccessful bidders. The *ex parte* applicant, aggrieved by the decision of the 3rd respondent, filed PPARB No. 66 of 2026 with the 1st respondent, and the 2nd and 3rd respondents filed a response and submissions in opposition to the request for review. It is contended that the factual background, relied upon by the *ex parte* applicant, is an attempt to conduct a merit-based review of the 1st respondent’s decision, and the same is an impermissible appeal on the merits of the 1st respondent’s decision. It is averred that the 1st respondent’s decision was rendered in accordance with the law and in adherence to the terms of the tender document; and that the *ex parte* applicant has failed to demonstrate that the 1st respondent’s decision was irrational, procedurally flawed or unlawful. 6. The *ex parte* applicant filed a supplementary affidavit, sworn by Mr. Roble Mohamud Ega Musee, on 23rd July, 2026 stating that the 2nd and 3rd respondents have failed to challenge the *ex parte* applicant’s assertion that the 1st respondent’s reliance on the false premise was irrational and unlawful. It is averred that the 2nd and 3rd respondents have failed to explain why the 1st respondent imported a new criterion not contained in the tender documents or the rejection letter, confirming that the 1st respondent’s conduct was *ultra* *vires* and unjustified. It is stated that, by withholding the notes, the 2nd and 3rd respondents sought to sustain the false assertion in their affidavits, that the tender process followed the law and that failure to submit the notes underscore procedural impropriety, intentional concealment and confirms that the 1st respondent’s decision rested on a false premise. 7. The *ex parte* applicant filed written submissions, dated 14th July 2026. It argues that the 1st respondent unreasonably exercised its powers, and its conduct, in the circumstances was irrational. It is further submitted that the 1st respondent’s finding that the *ex parte* applicant demonstrated only 6 years of experience was irrational and unsupported by evidence before it, and that the contract relied upon (TA864921P0898) could not, as a matter of fact, demonstrate 6 years at the tender opening date, and that the 1st respondent adopted contradictory positions from the procuring entity without reconciliation, thereby failing the test of reasonableness. It is submitted that the 1st respondent’s finding was irrational and unsupported by the record and that the document that was relied upon did not substantiate the conclusion reached. 8. It is further submitted that the 1st respondent’s conclusion that the *ex parte* applicant could not rely on ATC-NY’s experience in absence of a joint venture was unlawful, irrational and procedurally unfair and that the tender document did not impose a joint venture requirement, and that section 80(2) of the Public Procurement and Asset Disposal Act prohibits importing unstated criteria, and that the *ex parte* applicant submitted both a manufacturer’s authorization and a joint venture agreement. It is submitted that the decision was tainted with illegality as the 1st respondent did not consider all the issues raised in the request for review, bearing in mind that the tender was awarded to a bidder who did not meet the minimum mandatory requirements, and, in so doing, the 1st respondent breached its duty to act judicially by failing to apply its judicial mind to all the issues as raised by the parties, thereby occasioning injustice to the *ex parte* applicant. 9. The *ex parte* applicant submits that its legitimate expectation, that the tender will be awarded in accordance with a system that is fair, equitable, transparent, competitive and cost effective, and in accordance with the law has been frustrated and denigrated. It is submitted that the 1st respondent failed to interrogate whether the joint venture requirement was applied consistently across all bidders, including the interested party, and that all bidders necessarily relied on international partners to meet 8 years’ experience threshold, and that singling out the *ex parte* applicant for disqualification on this basis was discriminatory and irrational, as cyber–Range Simulation is a specialized service not offered locally. 10. It is further submitted that the procuring entity failed to submit or provide valid tender opening minutes and that this omission constitutes a breach of section 78(6) of the Public Procurement and Asset Disposal Act, and undermined transparency and fairness in the procurement process, and that failure to produce mandatory minutes amounts to procedural impropriety and by introducing evaluation criteria not contained in the tender documents, the board acted outside its lawful mandate, under section 80(2) of the Public Procurement and Asset Disposal Act and Regulation 74(2). The *ex parte* applicant submits that the board failed to apply criteria uniformly across all bidders, thereby breaching the principles of fairness and non-discrimination under section 3 of the Public Procurement and Asset Disposal Act. 11. The *ex parte* applicant submits that it is entitled to the orders sought, and relies on *Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic* [1997] KECA 58 (KLR), where *Halsbury’s Law of England*, 4th Edn. Vol. 7p. 111 para 89 was cited, where it states: “The *order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High court of justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual*.” 1. There is also reliance on *Republic vs. Public Procurement Administrative Review Board; Kenya Power & Lighting Company Limited (Interested Party) Exparte Transcend Media Group Limited* (2018) KEHC 1852(KLR) and*Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited*(2002) eKLR, where the court stated: “*The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision-maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision- and that, as we have said, is not the province of judicial review.”* 1. The 1st respondent submits that it was bound by the provisions of the Public Procurement and Asset Disposal Act, specifically section 80, which requires it to evaluate tenders in accordance with the criteria set out in the tender documents. It is submitted that, regarding the requirement for 8 years’ experience, which was mandatory requirement No. 1, the 1st respondent examined the *ex parte* applicant’s submitted documents, and found that the contracts submitted did not clearly demonstrate experience in cyber range simulation projects and that the *ex parte* applicant could not rely on the experience of its partners, because the *ex parte* applicant submitted its bid as an independent bidder, not as a joint venture. 2. The 1st respondent further submits that it found that the *ex parte* applicant could not “borrow” the experience of ATC-NY, because ATC-NY was not a party to the bid. It is averred that the 1st respondent accorded the *ex parte* applicant a fair hearing, and that there is no evidence of bias or procedural unfairness, as alleged by the *ex parte* applicant. It is stated that the *ex parte* applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety or unfairness in the manner in which the 1st respondent considered and interrogated the evidence in arriving at its decision in PPARB No. 66 of 2026. It is further averred that the decision, dated 5th June 2026, was reasonable, rational and lawful, and did not without overreach the mandate and jurisdiction of the 1st respondent, hence the application should be dismissed with costs. 3. The 2nd and 3rd respondents submit that the issues introduced by the *ex parte* applicant, in its supplementary affidavit, are new issues that were never raised before the 1st respondent, and that the new issues seek to bypass the 1st respondent, and to invite the court to deal with them for the first time. It is averred that the *ex parte* applicant, by that new material, seeks to deny the 1st respondent the opportunity to exercise its specialized jurisdiction, with respect to procurement matters, and cite *Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others* (2012) KECA 104 (KLR), where it was observed as follows: “The *Review Board is a specialized statutory tribunal established to deal with all complains of breach of duty by the procuring entity. From the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature, the Review board is obviously better equipped than the High court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.”* 1. The interested party submits that a party cannot, at the judicial review stage, introduce new factual allegations, new documents or new grounds of complaint that were never placed before the original decision-maker, and that to permit a party to ambush the respondents with new allegations at this stage, undermines the integrity of the judicial review process. It has relied on *Republic vs. Chairman, Business Premises Rent Control Tribunal & Another ex parte Hekima College* (2014) KEHC 6930(KLR), where the court had said: “*In its submissions the applicant introduced new factual matters which were not contained in the affidavit in support of the application for leave to apply for judicial review. In commissioner General, Kenya Revenue Authority Through Republic vs Silvano Anema Owaki T/A Marenga Filing Station Civil Appeal No. 45 of 2000, the Court of Appeal held: ‘We would observe that it is the verifying affidavit not the statement to be verified, which is of evidential value in an application for judicial review,”* 1. The interested party further argues that the application is a disguised appeal on the merits rather than a proper judicial review challenge, and emphasizes that judicial review is not an appeal, and that a challenge to the correctness of factual findings is outside the supervisory jurisdiction. The interested party relies on *Republic vs. Mwingi District Commissioner ex parte Wilson Nguna Kimenga* (2013) KEHC 3720 (KLR), where it was stated: “*I cannot help but agree with the interested party that the applicant’s purported challenge to the decision-making process by the District Commissioner is in reality a challenge on the merits of the decision and a disguised appeal from the said decision.’’* 1. The interested party further submits that the 1st respondent was entitled to interpret the tender document as it did, and that its interpretation falls within the range of reasonable outcomes that a specialized tribunal could reach. 2. Having considered the pleadings, the affidavits and the submissions, I find that the only issue for determination is whether the *ex parte* applicant is entitled to the orders sought. 3. On whether the application before me is a disguised appeal, in the name of a judicial review application, the *ex parte* applicant contends that the application is far from an appeal, and that it pleads the violation of Article 47 of the Constitution, and, as such, the court is not jurisdictionally injuncted from engaging the merits of the 1st respondent’s decision and to make appropriate reliefs. The respondents, on the other hand, urge that the *ex parte* applicant’s challenge of the decision, in PPARB No. 66 of 2026, is an appeal against the said decision, disguised as a judicial review application, and the court should decline to allow the prayers sought. 4. The issue of jurisdiction, raised by the respondents and interested party, is of critical importance, because it seeks to define the scope of the court’s jurisdiction, and the limits of intervention by this court. The fundamental distinction between an appeal and judicial review is that an appeal challenges the merits or correctness of a court’s decision, while a judicial review scrutinizes the lawfulness and fairness of the process used by an administrative body. Judicial review does not permit the court to re-evaluate evidence, re-assess factual findings or substitute its own view for that of a specialized statutory body, rather, it is concerned with the lawfulness, procedural propriety, rationality and compliance with constitutional and statutory mandates. The principle was enunciated in *Associated Provincial Picture Houses vs. Wednesbury Corporation* [1948] 1 KB 223,which introduced the “Wednesbury unreasonableness” standard, as a ground for judicial review, and wherein the court stated that judicial review focuses on legality and reasonableness, not re-evaluation of facts or merits like an appeal. 5. In *Republic vs. National Transport and Safety Authority & 2 Others; Kimathi (Ex parte)* (2025) KEHC 6608(KLR),it was also observed: “*It is trite that judicial review remedies are concerned with the decision -making process of administrative or public bodies rather than the merits of the decision itself. The scope of judicial review is thus limited to assessing whether an administrative or public body acted within its legal mandate, observed the rules of natural justice and adhered to statutory and constitutional procedures.”* 1. Judicial Review is not concerned with whether the 1st respondent’s decision was the best or the most proportionate one, but whether it was lawful, rational and procedurally fair. If the court were to accept the *ex parte* applicant’s invitation, it would require the court to substitute its own assessment of compliance with tender requirements for that of a specialized statutory tribunal, contrary to the well-settled principle that courts must exercise restraint, and avoid encroaching into areas of technical expertise reserved for procurement bodies. 2. It must be underscored that even where an application is framed as one alleging violation of Article 47 of the Constitution, the court must still look beyond the labels employed, and interrogate the true substance of the dispute. A party cannot, by mere invocation of constitutional language, convert a merits-based grievance into a justiciable issue of judicial review. In the present case, the *ex parte* applicant’s complaints, that the disregard of the 6 years’ experience, based on ATC-NY contracts, but disallowing reliance on ATC-NY’s experience, is not a ground for judicial review, as the 3rd respondent’s requirement for 8 years’ experience, which was Mandatory Requirement No. 1, under the Technical Capacity Evaluation criteria, was not met by the *ex parte* applicant. This argument does not impugn the lawfulness of the decision-making process, but rather seeks to persuade the court that the 1st respondent ought to have reached a different outcome on the same material. To entertain such an argument would require the court to descend into the arena of tender evaluation, and to substitute its own assessment for that of a specialized statutory body, contrary to the settled principle that judicial review is supervisory, not appellate. 3. It is this court’s finding, therefore, that the application substantially amounts to an appeal disguised as a judicial review, and, on this ground alone, it is improperly before the court. 4. Having considered the rival positions, the court is not satisfied that the 1st respondent acted illegally or *ultra vires*. I find that the 1st respondent addressed itself to the tender requirements and the applicable professional standards governing the mandatory requirements for bidders, and reached a conclusion on compliance, that fell within its evaluative jurisdiction. The court is concerned only with the legality of the decision-making process, not the correctness of the outcome. The *ex parte* applicant’s case, at its core, amounts to a request for this court to re-evaluate the merits of the tender, and to reach a different outcome. That invitation must be declined, as judicial review is a supervisory, not an appellate jurisdiction. 5. As regards procedural fairness, no evidence has been placed before the court to demonstrate that the *ex parte* applicant was denied a fair hearing before the 1st respondent, or that the decision-making process was procedurally flawed. The 1st respondent considered the material placed before it, and rendered a reasoned decision. Judicial review does not impose a duty upon a review body to accord parties the benefit of doubt or permit post-bid clarifications, where the tender documents prescribe mandatory requirements. 6. The *ex parte* applicant has failed to establish any of the recognized grounds upon which this court may lawfully interfere with the 1st respondent’s decision. The challenge, in substance, amounts to a disagreement with the merits of the 1st respondent’s evaluation, which is not a proper basis for grant of judicial review remedies. It has failed to demonstrate any illegality, excess of jurisdiction, irrationality, or procedural unfairness on the part of the 1st respondent. The application is hereby dismissed. On costs, I order that each party bear its own costs. **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. Lakicha, instructed by Hassan N. Lakicha & Company, Advocates for the *ex parte* applicant.** **Mr. Ali, instructed by the Attorney General, for the 1st respondent.** **Ms. Koskei, instructed by MK & Company Advocates LLP, for the 2nd and 3rd respondents.** **Mr. Oundo, instructed by Oundo OM Advocates LLP, for the interested party.**