[2016] KEHC 7468 (KLR)

[2016] KEHC 7468 (KLR)

The court found that the letter purporting to withdraw the request for review did not meet the requirements of Regulation 83, as it was not addressed to the Secretary of the Review Board, was not proven to have been received by the Secretary, and bore signs of forgery. Therefore, the request for review was not validly withdrawn, and the Board was entitled to proceed. However, the Board exceeded its jurisdiction by directing the applicant to award the tender to the interested party before the financial evaluation stage, contrary to the mandatory provisions of the Act and Regulations. The Board's power to substitute its decision for that of the procuring entity is not unlimited and must be...

Citation
[2016] KEHC 7468 (KLR)
Parties
Applicant: Republic; Respondent: Public Procurement Administrative Review Board; Respondent: Attorney General; Interested Party: Daniel Outlets; Ex Parte Applicant: Numerical Machining Complex Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
14 March 2016
Case Number
Miscellaneous Civil Application 261 of 2015
Procedural Posture
Miscellaneous Application / Judgment
Outcome
Application allowed in part; decision of the Public Procurement Administrative Review Board quashed.
Judges
GV Odunga
Legal Topics
Judicial Review, Public Procurement, Tender Evaluation, Ultra Vires, Natural Justice, Certiorari
Source Language
English
Administrative Law Commercial and Corporate Judicial Review Public Procurement Tender Evaluation Ultra Vires Natural Justice Certiorari

Case Brief

Summary, issues, holding and outcome

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Parties

Republic

Applicant

Public Procurement Administrative Review Board

Respondent

Attorney General

Respondent

Daniel Outlets

Interested Party

Numerical Machining Complex Limited

Ex Parte Applicant

Procedural Posture

Miscellaneous Application / Judgment

Legal Issues

  1. 1 Whether the Public Procurement Administrative Review Board acted ultra vires by directing the award of a tender to the interested party before completion of the procurement process.
  2. 2 Whether the alleged withdrawal of the request for review was valid and effective under Regulation 83 of the Public Procurement and Disposal Regulations, 2006.
  3. 3 Whether the Board's decision violated the mandatory provisions of the Public Procurement and Disposal Act and Regulations.

Ratio Decidendi

The court found that the letter purporting to withdraw the request for review did not meet the requirements of Regulation 83, as it was not addressed to the Secretary of the Review Board, was not proven to have been received by the Secretary, and bore signs of forgery. Therefore, the request for review was not validly withdrawn, and the Board was entitled to proceed. However, the Board exceeded its jurisdiction by directing the applicant to award the tender to the interested party before the financial evaluation stage, contrary to the mandatory provisions of the Act and Regulations. The Board's power to substitute its decision for that of the procuring entity is not unlimited and must be...

Court Disposition

Application allowed in part; decision of the Public Procurement Administrative Review Board quashed.

Orders

  • An order of certiorari is issued quashing the Board's decision in Review No. 32 of 2015 directing the award of tender NMC/03/2014-2015 to the interested party.
  • The applicant is to proceed from the point the tendering process was before it was terminated.