Republic v Procurement Administrative Review Board & 3 others; Rodeko Holdings Ltd (Ex parte) (Judicial Review E231 of 2026) [2026] KEHC 12892 (KLR) (18 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW NO. E231 OF 2026** **REPUBLIC……………………………………………………………………..………. APPLICANT** **VERSUS** **THE PROCUREMENT ADMINISTRATIVE REVIEW BOARD..1ST RESPONDENT** **DIRECTOR GENERAL,** **KENYA RURAL ROADS AUTHORITY……………………………..….2ND RESPONDENT** **ATTORNEY GENERAL…………………………………………………….3RD RESPONDENT** **DIJAG COMPANY LIMITED…………………………..…………….……4TH RESPONDENT** ***EX PARTE:* RODEKO HOLDINGS LIMITED** **JUDGEMENT** 1. The *ex parte* applicant moved this court by way of a motion, dated 9th July 2026, seeking an order of *certiorari*, to quash the decision of the 1st respondent, made on 7th July 2026, with respect to the Request for Review, in PPARB No. 86 of 2026, dated 16th June 2026; and an order of prohibition, to prohibit the 2nd respondent from acting on the said decision of 7th July 2026. 2. The grounds, on the face of that application, are that the impugned decision is *ultra vires* the salient provisions of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya; is tainted with illegality, is fundamentally flawed, and made against the strict provisions of section 74 and 79 of the Public Procurement and Asset Disposal Act; is unlawful and made in bad faith, is malicious, whimsical, and is made for an ulterior and improper motive; is tainted by manifest bias and partiality, and incompatible with the roles and duties of the 1st respondent; is against the principles of public interest and legitimate expectation, is internally contradictory and made in error of law; does not address the germane issues raised in the request for review; and does not take into account relevant factors, and considered irrelevant factors instead. 3. The *ex parte* applicant states its case in the statutory statement, dated 8th July 2026. It is averred that the decision in question related to a tender, No. KeRRA/NDI/08-39/079/2025-2026, on improvement and routine maintenance works on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road, floated by the 2nd respondent. The impugned decision arose out of PPARB No. 86 of 2026, where the request for review was dismissed, on 7th July 2026. The complaint, in the request for review, was that the 2nd respondent had employed a criterion which was not specifically stated in the tender documents, and the strict letter of the law had been disregarded. It is stated that the tender number, indicated in the tender invitation letter, was for a different tender, which was said by the 1st respondent to be a mere typographical error. The grounds, set out in the statement, mirror those repeated in the motion. 4. The verifying affidavit is sworn by Ms. Mercy Chepyator, a director of the *ex parte* applicant. The same essentially reproduces the grounds set out in the motion and the statement, but, fundamentally, attaches the documents that support the application. 5. I hereby recite the documents exhibited. There is a copy of the request for review, filed in PPARB No. 86 of 2026, dated 16th June 2026, and a copy of the affidavit supporting it, sworn by Ms. Chepyator, on even date. There is a copy of notification of intention to enter into a contract, dated 5th May 2026, from the 2nd respondent, addressed to the *ex parte* applicant. There is a copy of an envelope addressed to the *ex parte* applicant, by the 2nd respondent. There is a transaction report, from the Postal Corporation of Kenya, dated 16th June 2026. There is a copy of a tax compliance certificate, dated 1st December 2025, in respect of the *ex parte* applicant, issued by the Kenya Revenue Authority. There is a copy of an iTax checker document from the Kenya Revenue Authority, whose date of issue is unclear. 6. There is a copy of the tender document, dated March 2026, exhibiting pages i, ii, iii, v and 26. There is a copy of an addendum, No. 2, dated 5th November 2024. There is a copy of the written submissions that the *ex parte* applicant filed in PPARB No. 86 of 2026, dated 30th June 2026, and its lists and bundles of authorities, dated 29th June 2026 and 30th June 2026. There are also copies of the response to the review, filed in PPARB No. 86 of 2026, by the 2nd respondent, dated 29th June 2026; a general power of attorney, given by the *ex parte* applicant, to Ms. Chepyator, dated 24th March 2026; a page from the tender document; a replying affidavit, from the 4th respondent, sworn by Mr. Amos Bwambok, on 29th June 2026, with an authority to swear affidavit, of even date; and the impugned decision of the 1st respondent, in PPARB No. 86 of 2026, dated 7th July 2026. 7. 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 7th July 2026, arising from PPARB No. 86 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. 8. It is stated, with regard to use of different tender numbers in relation to the subject tender, that the 1st respondent examined the tender documents forming part of the record, and noted reference to different tender reference numbers, in the cover page, the invitation to tender and the data sheet; which discrepancy was explained by the 2nd respondent, as a typographical error, in respect of which addendum number 3 was issued. It is further stated that the 1st respondent found that the *ex parte* applicant had successfully obtained the appropriate tender documents, submitted its tender within the prescribed timelines and participated in the procurement without difficulty. It is further stated that 12 other bidders also submitted bids, in response to the same procurement, and no bidder sought clarification regarding the said discrepancy, before the tender submission deadline. It is asserted that the 2nd respondent corrected the typographical error, through an addendum, hence no prejudice was occasioned, integrity of the procurement proceedings was not compromised, and the process could not be invalidated on account of a typographical error. 9. It is further stated that the 1st respondent found that the tender document did not require certified documents to bear dates of certification, and that it found that the tax compliance certificate appeared valid on its face, as at the time of tender submission. As regards the power of attorney, it is stated that the 1st respondent found that the power of attorney, submitted by the *ex parte* applicant, was a general power of attorney, which was not specific to the tender in question, contrary to mandatory requirement number 11 of the tender document, hence there was a non-compliance with the requirements of the tender. It is averred that the 1st respondent reached its decision guided by the provisions of the Public Procurement and Asset Disposal Act, and the decision in *Sinopec International Petroleum Service Corporation vs. Public Procurement Administrative Review Board & 3 others* [2024] KECA 184 (KLR). It is further stated that the notification of intention to award fully complied with section 87(3) of the Public Procurement and Asset Disposal Act. It is averred that the notification was timeously issued and forwarded to all concerned, including the *ex parte* applicant, so much so that it was able to file PPARB No. 86 of 2026 within time. 10. The 2nd respondent has filed a replying affidavit, sworn on 4th August 2026, by Mr. Adams Omollo, its principal supply chain officer. It is conceded that the 2nd respondent advertised the tender No. KeRRA/NDI/08-39/079/2025-2026, for improvement and routine maintenance works on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road. It is averred that communication of the outcome of the procurement process went out, and a request for review was filed, to which the 2nd respondent responded, and a determination came out, giving the procurement process a clean bill of health. It is averred that the impugned decision of the 1st respondent addressed, at paragraphs 40 to 61, the discrepancy in the tender numbers, and concluded that the error was typographical. It is further averred that, at paragraphs 62 to 92, the impugned decision addressed the non-responsiveness of the bid placed by the *ex parte* applicant, for failure to comply with a mandatory requirement. It is further averred that the decision also addressed the issue of the letter of notification, and found that the same satisfied the requirements of section 87(3) of the Public Procurement and Asset Disposal Act. 11. It is argued that the said decision was in conformity with the relevant provisions of the relevant statutes and Article 227 of the Constitution, with respect to fairness, equity, transparency, competitiveness and cost efficiency. It is submitted that the *ex parte* applicant has not established that the 1st respondent had acted without jurisdiction, exceeded statutory mandate, acted illegally, acted against public interest, and acted arbitrarily or in breach of the rules of natural justice. It is averred that the 1st respondent fully heard all the parties, who were afforded equal opportunity to present documentary evidence, submissions and legal arguments. It is further averred that the 1st respondent properly evaluated all the issues raised, before it rendered a detailed reasoned and lawful decision. It is submitted that judicial review proceedings are concerned only with legality of the decision, and not the merits or substance of the decision. 12. The 2nd respondent has attached, to that affidavit, a copy of its response filed in PPARB No. 86 of 2026; a copy of the tax compliance certificate relied on by the *ex parte* applicant; an extract from the iTax checker portal; the general power of attorney availed by the *ex parte* applicant; and an extract from the tender documents. 13. The interested party filed an affidavit, sworn by Mr. Amos Bwambok, on 27th July, 2026. It is averred that the interested party responded to the advertised tender, by submitting a bid which fully conformed to all the eligibility and other mandatory requirements in the tender document, and the tender was awarded to it by the 2nd respondent, vide a letter of notification, dated 20th May 2026. The *ex parte* applicant was aggrieved by that decision, and filed the request for review in PPARB No. 86 of 2026. The same was heard and a determination was made, on 7th July 2026, dismissing the request for review. 14. It is argued that judicial review is not an appeal, as it only considers the process and the procedure used to arrive at the decision, as opposed to an appeal, which re-considers and re-evaluates the evidence on record as against the decision made. It is submitted that judicial review is not concerned with merits of the impugned decision, but with excesses of jurisdiction and failure to observe the rules of natural justice. It is argued that the application herein does not meet the legal threshold for grant of the orders sought, as the *ex parte* applicant has not illustrated illegality and irrationality of the decision, nor that it was marred by procedural impropriety. On the contradicting tender numbers, it is submitted that the *ex parte* applicant had identified the appropriate tender and applied for it, without any hitches, despite noting the discrepancy. It is argued that the *ex parte* applicant ought to have raised the issue of the tender number, at the time when it noted the discrepancy, in line with section 167(1) of the Public Procurement and Asset Disposal Act. On the matter of the non-responsiveness of the bid by the *ex parte* applicant, it is argued that the same was inviting the court to look into the merits of the decision, rather than the process. 15. The application has been canvassed by way of written submissions, following the directions given on 9th July 2026. I have seen, in the record before me, written submissions by the *ex parte* applicant, the 1st and 3rd respondents, the 2nd respondent and the interested party. 16. The ex *parte* applicant has filed written submissions, dated 14th July 2026. They turn around 4 issues, being whether the impugned decision is amenable to judicial review; whether the said decision is irrational, illegal, procedurally improper and in breach of sections 79, 80 and 86 of the Public Procurement and Asset Disposal Act; whether the 1st respondent failed to consider relevant matters, misapplied precedent and violated legitimate expectation; and whether the orders sought should issue. 17. The decisions, in *Joseph Florence Maritime Services Limited & another vs. Cabinet Secretary Transport and Infrastructure & 3 others* [2021] KESC 39 (KLR), *Hexing Technology Company Limited vs. Public Procurement and Administrative Review Board & 3 others; Smart Meter Technology Limited & 5 others (Interested Parties)* [2025] KEHC 19075 (KLR), *Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 Others* [2016] eKLR [2016] KECA 729 (KLR), *Petro Oil Kenya Limited vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Ferry Services Limited & 2 others (Interested Parties)* [2020] eKLR [2020] KEHC 5761 (KLR*)*, *Zachariah Wagunza & another vs. Office of the Registrar Academic Kenyatta University & 2 others* [2013] eKLR [2013] KEHC 6908 (KLR), *Okoiti & 3 others vs. Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others* [2021] KEELRC 2306 (KLR)and *Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic* [1997] KECA 58 (KLR), are cited; and so are sections 74(1)(b) and 173 of the Public Procurement and Asset Disposal Act; section 7 of the Fair Administrative Action Act, Cap. 7C, Laws of Kenya; and Articles 47 and 227 of the Constitution of Kenya. 18. The written submissions by the 1st and 3rd respondents are dated 3rd August 2026. They rotate around 5 issues, on the impugned decision being *ultra vires* or illegal; the said decision being irrational or unreasonable; the duty to act judicially being breached, by failing to consider relevant matters; bias or partiality being exhibited; and the reliefs sought being available and appropriate. Sections 74, 75, 79, 167 and 173 of the Public Procurement and Asset Disposal Act are cited; while the decisions, in *Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Central Kenya Fresh Merchants Limited* [2018] KEHC 1203 (KLR), *Minister of Social Development & others vs. Phoenix Cash & Carry Pmb CC* [2007] ZASCA [2007] 3 All SA 115 [2007] (9) BCLR 982 (SCA), *Sinopec International Petroleum Service Corporation vs. Public Procurement Administrative Review Board & 3 others* [2024] KECA 184 (KLR), *Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation* [1948] 1 KB 223 and *Jane Kiongo & 15 others vs. Laikipia University & 6 others* [2019] eKLR, are relied upon. 19. The written submissions filed by the 2nd respondent are dated 6th August 2026, and address 2 issues, the law applicable for judicial review in the context of public procurement litigation, under section 175 of the Public Procurement and Asset Disposal Act, and whether the *ex parte* applicant has laid basis for grant of the orders sought in its application. Sections 175 of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution are cited; while *Okoth and Kiplagat Advocates vs. Procurement Administrative Review Board & 3 others* [2026] KECA 1212 (KLR), *Republic vs. Public Procurement Administrative Review Board & 3 others; Astronea Construction Limited (Ex parte Applicant)* [2024] KEHC 1429 (KLR), *Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others* [2012] KECA 104 (KLR) are relied on. 20. The written submissions by the interested party are dated 31st July 2026. They turn on 3 issues, jurisdiction of the court to grant the orders sought, the 1st respondent acting in error of law, and the *ex parte* applicant being entitled to the orders sought. Sections 70, 74(1)(b), 86, 167(1) and 173 of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution are relied on; and *Pastoli vs. Kabale District Local Government Council & Others* [2008] EA 300, *Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd* [2002] eKLR and *Republic vs. Public Procurement Administrative Review Board; County Government of Nyeri & another (Interested Parties); Utmost Insurance Brokers Limited & another* [2026] KEHC 1620 (KLR) are cited. 21. 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. 22. One of the questions, raised by the respondents, is on the propriety of these proceedings, for it would appear, to them, that the application before me is a disguised appeal, in the name of a judicial review application. That would obliquely raise a jurisdiction issue, which I must endeavour to resolve first, before I venture into the merits of the application. The issue is of critical importance, for it seeks to define the scope of the jurisdiction of the court, and the limits of intervention by this court. 23. The fundamental distinction, between an appeal and judicial review, is that appeal challenges the merits or correctness of the decision of the court, while 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. 24. In *Republic vs. National Transport and Safety Authority & 2 Others; Kimathi (Ex parte)* (2025) KEHC 6608 (KLR),it was stated: “*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. I need not make a decision at this stage, on whether the matter before me is a proper judicial review application, or an appeal disguised as one. I only need to remind myself of that distinction, as I venture to evaluate the merits of the case before me, in terms of whether the *ex parte* applicant is entitled to that which it asks me to do. It would be only after I have done that that I would be in a position to answer that question. 2. The application before me asks for 2 reliefs, *certiorari*, to quash the decision made in PPARB No. 86 of 2026, and prohibition, to prevent implementation of that decision. My considered view is that the prayer for prohibition is needless, for once *certiorari* issues, the decision in question would stand quashed, hence unavailable, for the purpose of its implementation being prevented through the order of prohibition. 3. The statutory statement and the verifying affidavit are rather vaguely drawn or framed, and it has been rather difficult for me to decipher the exact areas of conflict. The major issue, that I have picked out, from the 2, is that the tender document, identifying the contract tendered for, is referred to using different numbers, creating a mix-up, hence potential confusion. The *certiorari* order is anchored on this, on the basis that the uncertainty over the tender number fundamentally destroyed the integrity of the process, and the 1st respondent ought to have nullified the entire procurement process, based on that.The fact that there was an anomaly with the number of the tender is not contested by the 2nd respondent. 4. From the material before me, I see that the title or heading to these proceedings refers to Tender No. KeRRA/NDI/08-39/079/2025-2026, which relates to improvement and routine maintenance works on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road. There is no other reference, in the said title or heading, to any other tender number, or to the works. In my understanding, the tender, the subject of the procurement process, was that the subject of the proceedings in PPARB No. 86 of 2026, and herein, being Tender No. KeRRA/NDI/08-39/079/2025-2026, relating to improvement and routine maintenance works on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road. That was the tender that the parties hereto were concerned about, and litigated over before the 1st respondent, and not any other. 5. What is the factual situation? A truncated copy of the tender document has been exhibited. Truncated because only what the parties consider to be the relevant material has been made available. The cover page of the tender document refers to Tender No. KeRRA/NDI/08/39/079/25/26 and routine maintenance and spot improvement on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road. The invitation to tender, at page v, refers to Tender No. KeRRA/NDI/08/38/77/24/25 and routine maintenance and spot improvement on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road in Nandi Region. The invitation is specific to routine maintenance of G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road. Page 26 of the tender document makes reference to Tender No. KeRRA/NDI/08/39/079/24/25 and spot improvement on G8408/R33 Mbelekenya-Masan-Kipngeru-Sironoi Road and Access Road in Nandi Region. Addendum No. 2, of 5th November 2024, advises tenderers on Tender No. KeRRA/NDI/08/39/025-24/25 and Kapsengere Junction–Chepkurgung Road. 6. What does the law say, on the subject of such errors or discrepancies in the tender document? This area of the tendering process is covered in Part VII of the Public Procurement and Asset Disposal Act, which carries the basic procurement rules. Section 70 of the Public Procurement and Asset Disposal Act states what the standard tender documents should entail and contain in substance. Section 74 sets out what ought to be contained in an invitation to tender. Section 75 provides for modification of tender documents. Section 76 provide for modification of bids. 7. The issue being raised here is with respect to errors, mistakes, anomalies, ambiguities, omissions or discrepancies in tender documents. Section 75 of the Public Procurement and Asset Disposal Act seeks to address cases where such errors or anomalies or discrepancies arise. They would be curable, not fatal to the process. Section 75 sets out how to cure such, by use of addendum, to amend the tender document, before the deadline for submissions, which amendments ought not alter the substance of the original tender. The addendum is the official and recognised way for a procuring entity to correct errors, clarify ambiguities or provide additional information in the tender documents. The objective, which emerges from section 75(3), which requires provision of the addendum to each person to whom the procuring entity had provided copies of the tender documents, is to ensure fairness and equal information to all bidders, for the principle of fairness requires that all bidders be evaluated based on the same criteria and information. 8. For avoidance of doubt, section 75 of the Public Procurement and Asset Disposal Act, in its entirety, provides as follows: “*75. Modifications to tender documents* *(1)A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender.* *(2) An amendment may be made on the procuring entity's own initiative or in response to an inquiry by a candidate or tenderer.* *(3)A procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.* *(4) The addendum shall be deemed to be part of the tender documents.* *(5) If the tender documents are amended when the time remaining before the deadline for submitting tenders is less than one third of the time allowed for the preparation of tenders, or the time remaining is less than the period indicated in instructions to tenderers, the accounting officer of a procuring entity shall extend the deadline as necessary to allow the amendment of the tender documents to be taken into account in the preparation or amendment of tenders*.” 1. It would, perhaps, be useful to contrast this position, stated in section 75, with the rule on errors made by bidders in their documents. Whereas procuring entities are given leeway to amend their documents, before deadline for submissions, bidders do not enjoy such flexibility. A bid, once tendered or submitted, cannot be corrected, adjusted or amended, and is usually considered absolute and final. It is a strict rule, applying to errors in bids, which is different from errors in the tender document itself. Section 76 of the Public Procurement and Asset Disposal Act provides for modification of bids. It is a stringent provision, which makes it clear, at subsection (2), that, after the deadline for submitting bids, a tender cannot be changed. 2. Again, for avoidance of doubt, section 76 of the Public Procurement and Asset Disposal Act provides: ### “*76. Modification of bids* *(1) Before the deadline for submitting tenders, a person who submitted a tender may only change or withdraw it in accordance with the following—* *(a)the change or withdrawal shall be in writing; and* *(b)the change or withdrawal shall be submitted before the deadline for submitting tenders and in accordance with the procedures for submitting tenders.* *(2) After the deadline for submitting tenders, a person who submitted a tender shall not change, or offer to change the terms of that tender*.” 1. So, the errors or discrepancies or anomalies, in the tender document are curable, by way of addendum, and the ones cited by the *ex parte* applicant were not fatal to the process, but curable by that process. The 1st respondent claims that there was one such addendum, which clarified the applicable tender number. It was described as addendum number 3. However, the 1st respondent has not attached any documents to its affidavit, and none of the other parties have exhibited the alleged addendum number 3. 2. However, that notwithstanding, the *ex parte* applicant herein did not appear to have had raised any issue with those discrepancies. Despite them, it went on to submit a bid, and, essentially, to participate in the tender process. It does not argue nor demonstrate that the said anomalies or discrepancies disadvantaged it against the other bidders, or contributed, in some way, in its bid being unsuccessful. Indeed, under section 167(1) of the Public Procurement and Asset Disposal Act, it had the option, if, in its view, the said anomaly or discrepancy was prejudicial to it, to move the 1st respondent, by way of administrative review, within 14 days of discovering the anomaly, if it felt that it was a breach of the procurement process, which was fundamental to its validity. 3. How did the 1st respondent deal with the issue, given that it was the principal issue before it? 4. From what I can see from the impugned decision, the 1st respondent reviewed the tender documents and noted the inconsistency raised by the *ex parte* applicant. Contrary to the assertion by the 2nd respondent, that it issued addendum number 3; to clarify the tender number, the 1st respondent found no evidence of that. However, the 1st respondent found that the existence of that inconsistency, unremedied by an addendum, did not invalidate the procurement process, so long as it did not prejudice the *ex parte* applicant, or otherwise compromise the fairness, transparency, competitiveness or integrity of the entire process. It was noted that, despite the inconsistent tender, the *ex parte* applicant was still able to identify the procurement, by way of the road described, obtain the tender documents, prepare and submit its tender, within the stipulated timelines, and participate in the process without any difficulty. 12 other bidders also successfully participated in the procurement process, despite the anomaly, it was noted. 5. It was also considered, by the 1st respondent, that none of the bidders took advantage of section 75(2) of the Public Procurement and Asset Disposal Act, to inquire or seek clarification, and prompt an amendment or clarification, by way of an addendum. It was further noted that the *ex parte* applicant could seek a review, under section 167 of the Public Procurement and Asset Disposal Act, to deal with any perceived irregularity in the process, but it did not take advantage of that. It was further noted, in that impugned decision, that the *ex parte* applicant had not demonstrated, to the 1st respondent, that it was prejudiced, in the preparation or submission of its bid, by that discrepancy, or that the discrepancy had affected the evaluation of its bid, or caused a disadvantage, on the part of the *ex parte* applicant, as against the other bidders. 6. In the end, the 1st respondent concluded, and rightly so, in my view, that the 2nd respondent ought to have regularised the discrepancy, by way of an addendum. Nevertheless, the 1st respondent continued, that discrepancy or inconsistency, in the tender documents, on the tender number of the particular contract, constituted a typographical error, which did not amount to a violation of section 74(1)(b) of the Public Procurement and Asset Disposal Act, and it did not vitiate the procurement process. I fully agree. I, accordingly, find and hold that the 1st respondent properly handled the material that was placed before it. In doing so, it did not act illegally, illogically or unreasonably, neither was its handling of that issue procedurally unfair. 7. The other issues raised are technical, and touch on whether the bid should have been found responsive or not. These are issues that go to merits. These proceedings are premised on Order 53 of the Civil Procedure Rules. Unless judicial review proceedings are brought by way of a constitutional petition, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, often referred to as the Mutunga Rules; or by way of an originating motion, under the Fair Administrative Action Act, where the court may embark on a merit review, there is no room for that under the Order 53 process. Besides, the 1st respondent is a specialised tribunal, which is best placed to conduct such a merit review, for, under section 67 of the Public Procurement and Asset Disposal Act, it has access to confidential material, which I do not have the advantage of, and, therefore, better informed, and able to make a more credible decision, which I should be hesitant to subtract from. 8. The principal decision, on the non-responsiveness of the bid by the *ex parte* applicant, was founded on the matter of the power of attorney, which formed part of the confidential documents. Nonetheless, that document has been exhibited by the parties. The relevant portion of the tender document, where a power of attorney is required, is among what has been exhibited. It requires a candidate to “Submit a written power of attorney specific to this Tender authorising the signatory of the bid to commit the Bidder, Witnessed by a Commissioner of Oaths.” The power of attorney provided, by the *ex parte* applicant, although witnessed by a Commissioner of Oaths, appointed a general attorney, rather than one specific to the tender in question. Indeed, its provisions make no mention, whatsoever, of the specific tender, and make no reference to a procurement process. The said power of attorney did not, clearly, conform to what the tender document required, which made the said bid unresponsive. 9. The *ex parte* applicant has argued, in its statutory statement, that the 1st respondent did not, in its determination, fully address all the germane issues raised in PPARB No. 86 of 2026. I have perused the Request for Review, filed in that cause, dated 16th June 2026. It principally complained about the letter of notification of the award, dated 5th May 2026, which communicated that its bid had been unsuccessful. The issues raised are that the letter was illegal, on account of the discrepancies or inconsistencies in the tender document; that the said letter was sent out late, so as to disadvantage the *ex parte* applicant, by locking it out of filing for a review of the process; and that its bid had met all the mandatory requirements. The affidavit, verifying the request for review, sworn on 16th June 2026, by Ms. Chepyator, is a 4-paragraph document, merely confirming the contents of the request for review; and that the Advocates, filing the review, had been properly appointed by the *ex parte* applicant for that purpose. 10. My perusal of the impugned decision, of the 1st respondent, reveals that the principal issue before it was that on the anomalies in the tender document. That issue was extensively and exhaustively addressed, by the 1st respondent, as discussed above, before it was concluded that, although an addendum was necessary, for clarification purposes, no prejudice was suffered, and the typographical error, for that is what it was, was not fatal to the entire process. The second issue, about the responsiveness of the bid by the *ex parte* applicant, was also addressed by the 1st respondent. The 1st respondent concluded that the 2nd respondent was wrong, with respect to the requirements on the tax compliance certificate and the certification of documents, but was right with respect to the power of attorney. In the end, the 1st respondent concluded that the bid was still unresponsive, on account of the *ex parte* applicant not providing a specific power of attorney, as required in the tender document, rather than the general power of attorney it submitted. 11. The issue of the letter of notification was also addressed by the 1st respondent. It was found and held that the contents of the said letter substantially complied with the requirements of section 87(3) of the Public Procurement and Asset Disposal Act. It was stated that the statutory obligation, imposed by section 87(3), is to communicate the reasons upon which the evaluation committee based its decision, whether the reasons are valid or not, and that that obligation was discharged. It was noted that there was a delay in transmitting the letters to the bidders, which affected all of them, and not just the *ex parte* applicant, hence none of them obtained a procedural advantage over the other. In any event, it was noted, despite the delay, the *ex parte* applicant was still able to file its request for review timeously. 12. The record, as emerges from the impugned decision, is fairly clear, that the 1st respondent did in fact consider all the issues flagged by the *ex parte* applicant, in its request for review; analysed the material availed to it, touching on the issues; and made informed decisions on all of the said issues. There can be no basis, therefore, for the argument that the issues, raised by the *ex parte* applicant, were not addressed, and that the 1st respondent did not act judicially. There was a proper identification of the issues and the facts or evidence availed touching on them, and a detailed analysis of that evidence, as against the applicable statutory provisions, before conclusions were drawn and a final determination made on the issues. I would conclude that the 1st respondent properly engaged and exercised its judicial mind to all the issues raised, and thereby acted judicially, and no injustice was occasioned to the *ex parte* applicant. 13. Overall, in view of everything discussed hereabove, I find and hold that the *ex parte* applicant has failed to establish any of the recognized grounds, upon which this court may lawfully intervene, to tinker with the decision of the 1st respondent. It has failed to demonstrate any illegality, excess of jurisdiction, irrationality or procedural unfairness on the part of the 1st respondent. The application, dated 9th July 2026, 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 18TH DAY OF AUGUST 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Advocates** **Mr. Obunga, instructed by Masika & Koross Advocates, for the *ex parte* applicant.** **Mr. Ali, instructed by the Attorney General, for the 1st and 3rd respondents.** **Mr. JM Rapando, Advocate, for the 2nd respondent.** **Ms. Mudeizi, instructed by ROM Law Advocates LLP, for the interested party.**