[2022] KEHC 3201 (KLR)

Republic v Public Procurement Administrative Review Board & 2 others; CPF Financial Services Limited (Exparte) (Judicial Review Application E037 of 2022) [2022] KEHC 3201 (KLR) (Judicial Review) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3201 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E037 of 2022

AK Ndung'u, J

May 6, 2022

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

1st Respondent

The Chief Executive Officer, The public Service Superannuation Fund Board of Trustees

2nd Respondent

The Board of Trustees, The Public Service Superannuation Fund

3rd Respondent

and

CPF Financial Services Limited

Exparte

Judgment

1. The ex-parte Applicant (hereinafter “the Applicant”) moved this court vide an application dated 29th March, 2022 seeking for orders that:1. An order of Mandamus compelling the 2nd and 3rd Respondents to comply with the Ruling and Orders issued by the 1st Respondent on 28th December 2021 in Application No. 148 of 2021: CPF Financial Services Limited v the Accounting Officer, Public Service Superannuation Scheme.2. An order of Mandamus compelling the 2nd and 3rd Respondents to award Tender No. PSS/003/2020-2021: Procurement of Fund Administrator for the Public Service Superannuation Fund to the Applicant.3. An order of certiorari to bring into this Honourable Court, to be quashed, the 1st Respondent’s decision delivered on 17th March 2022 in Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme (hereinafter, “the impugned decision”).4. An order of prohibition precluding the 2nd and 3rd Respondents and their officers, servants and/or agents from terminating, re-advertising and/or awarding the tender for the administration of the Public Service Superannuation Fund to any external administrator other than the Applicant.5. An order of prohibition precluding the 2nd and 3rd Respondents and their officers, servants and/or agents from resorting to the internal administration of the Public Service Superannuation Fund.6. Alternatively, and without prejudice to the foregoing, an order of mandamus compelling the 1st Respondent to re-admit Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme for purposes of re-consideration and issuance of appropriate and effective relief(s).7. The 2nd and 3rd Respondents shall reimburse the Applicant, on an indemnity basis, the costs of and incidental to—a.the (Chamber Summons) application for leave herein;b.the substantive judicial review application herein;c.the Public Procurement Administrative Review Board Application No. 148 of 2021: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme; andd.the Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme.8. Such other, further, incidental and/or alternative relief(s) as the Honourable Court may deem just and expedient.

2. The application is supported by the grounds set out on the face of the application together with the Statement of Facts dated 25th March, 2022 and Verifying Affidavit of Kimutai Hosea Kili of even date. The main grounds for the application is that on 17th March 2022, the 1st Respondent delivered a Ruling (hereinafter, “the impugned decision”) on the Request for Review No. 16 of 2022 the effect of which pegs the enforcement of its Rulings and Orders on the whim, caprice and/or goodwill of government officials, contrary to the provisions of Articles 10, 47, 73, 232 (1), (e), (f) and (g) and 2 (b) of the Constitution and invigorates dilatory conduct in public procurement, which is an affront to the object of the Act and the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter, “the Regulations”).

3. It was contended that the impugned decision is tainted by a fundamental error of law to the extent that it vitiates legislative intent by encouraging or rewarding malfeasance in public procurement. It was also contended that the impugned decision is tainted, wrought with and vitiated by fundamental errors of law and fact to the extent that the 1st Respondent ignored, disregarded and/or failed to follow binding precedent from this Honourable Court and failed to understand and give effect to section 167 (1) of the Act on the computation of time for purposes of crystallisation of a cause of action and the filing of requests for review.

4. Further, it was their contention that the 1st Respondent failed to find and hold that the Applicant’s letter of 7th January 2022 (extending the tender validity period for the Applicant’s bid) was based on the 1st Respondent’s Ruling and Orders of 28th December 2021 and that the said letter was necessitated by the 2nd Respondent’s proven pattern of dilatory conduct. That the Applicant’s cause of action on the issue of the extension of the tender validity period accrued at midnight on 11th February 2022, upon the expiry of the tender validity period as extended by the 1st Respondent’s Ruling and Orders of 28th December 2021.

5. Furthermore, that the 1st Respondent failed to understand and give effect to section 175 (6) of the Act on the illegality of the 2nd Respondent’s impunity, intransigence, contempt and/or deliberate refusal to obey the Ruling and Orders issued by the 1st Respondent on 28th December 2021 and also failed to appreciate that the Order referring the 2nd Respondent’s impunity, intransigence, contempt and/or deliberate refusal to obey the Ruling and Orders issued by the 1st Respondent on 28th December 2021 constituted an illusory or ineffective remedy given the provisions of section 40 (1) of the Act. It was therefore urged that the application be allowed.

Responses 6. The 2nd Respondent opposed the motion through the Replying Affidavit of Alice K. Nyariki sworn on 12th April, 2022. The deponent is the Ag. Chief Executive Officer in the Public Service Superannuation Scheme (Hereinafter “the Scheme”). She deponed that the Scheme advertised a tender for the procurement of a Fund Administrator for the Public Service Superannuation Fund on 1st June 2021 and the Procurement was done through Open Tendering which closed on 23rd June 2021. It was her deposition that among the bidders who submitted their bid documents was the Applicant herein and the evaluation committee carried out their technical evaluation and submitted the technical report on 13th July 2021.

7. That from the technical evaluation report, Bidder No. 2 M/s Liaison Financial Services Limited scored 48. 2% hence was non responsive at the detailed technical evaluation stage for attaining less than the 75% pass mark while Bidder No.3 M/s CPF Financial Services Limited, the Applicant herein, scored 95. 2% hence was responsive at the detailed technical evaluation stage. Thereafter, the evaluation committee recommended the opening of the financial proposals for the Applicant which approval was granted on 13th July 2021 by the Accounting Officer and the financial proposals for the Applicant opened on 21st July 2021. She contended that at the opening of the financial proposals the prices of the Applicant were as follows: Tender Sum (VAT inclusive) Year one: 0. 17%. Year two: 0. 16% and Year three: 0. 15% hence the Scheme commenced the due diligence exercise on the Applicant.

8. However, before the conclusion of the due diligence, a Request for Review No. 148 of 2021 was filed on 7th December, 2021 at the Public Procurement Administrative Review Board (hereinafter “the Board”) and on 28th December, 2021, the Board ordered the Respondent to ensure that the procurement proceedings of the Tender No. P5537003/2020-202I for Procurement of Fund Administrator for the Public Superannuation Fund proceeds to its logical conclusion within I4 days from the date of the decision taking into account consideration of the Board’s findings. The Respondent was further ordered to extend the tender validity period for the Tender No. PISS/00372020202 for Procurement of Fund Administrator for the Public Superannuation Fund Administrator for a further period of thirty (30) days from 11th January, 2022.

9. It was her averment that the Scheme did not breach the Orders of the Board because due diligence could not be logically concluded within the stipulated period because of background checks being conducted and the Scheme extended the tender validity from 20th January, 2022 for further 30 days which lapsed on 19th February, 2022. However, as at the time the Request for Review No. 16 of 2022 filed on 24th February, 2022 was heard and determined, the tender validity period had expired.

10. It was further her averment that the Tender Award could not happen by dint of Section 87 of the Act and a contract could not be entered either pursuant to section 135 (3) of the Act. In her view, the Scheme did not breach sections 86, 87, 88 and 176 (1) (c) of the Act and Regulation 82 of the Regulations since letters of intention to award the tender had not been issued due to the background checks being done as cited above. Furthermore, that the Scheme did not breach sections 44(1), 44(2) (f), 44(2) (j), 175 (6) and 176 (1)(m) of the Act since the Accounting Officer adhered to all the requirements of the Act and the Applicant is put to strict proof thereof. Indeed, she was of the view that the Applicant is in breach of section 66 (1) of the Act by trying to coerce the Scheme to award it a tender yet the procuring process has not been completed.

11. Accordingly, the Scheme cannot proceed to award the subject tender or enter into a contract with respect to the subject tender due to the fact that the tender validity period has lapsed. It was also her view that the Applicant herein seeks to challenge the merit of the decision which falls outside the mandate and jurisdiction of Judicial Review.

12. The 3rd Respondent supported the motion through the Replying Affidavit of Dr. Edward Owino Odundo sworn on 11th April, 2022. The deponent is the Chairman of the Public Service Superannuation Fund Board of Trustees, the 3rd Respondent herein. He deposed that the 3rd Respondent is responsible for the administration and management of the Public Service Superannuation Scheme which is a retirement benefits scheme established by the Public Service Superannuation Scheme Act, 2012. That the Scheme commenced operations on 1st January, 2021 and bound to comply with both the Public Service Superannuation Scheme Act, 2012 and the Retirement Benefits Act Which Acts separately require the 3rd Respondent to among others, appoint an Administrator.

13. It was his averment that due to infancy and thus lack of capacity the 3rd Respondent by a letter dated 28th April, 2021 sought the assistance of its parent Ministry, namely the National Treasury and Planning to, in accordance with the Public Procurement and Assets Disposal Act, 2015 assist it in procurement, among others, of an Administrator. He averred that following the request, the National Treasury and Planning presented to the 3rd Respondent a report of the Applicant, namely CPF Financial Services Limited as being the successful bidder for the services of administrator. He further averred that in the 13th Board Meeting held on 12th August 2021, the 3rd Respondent after considering the report of the National Treasury and Planning, approved the appointment of the Applicant, as the Administrator of the Public Service Superannuation Scheme.

14. However, he averred that the 3rd Respondent does not formally know why the 2nd Respondent and/or the National Treasury and Planning has not issued the Letter of Award to the Applicant and let the procurement process be completed. That the delay in the appointment of an administrator of the Public Service Superannuation Scheme has crystalized the avoidable danger of the 3rd Respondent to several penalties of non-compliance prescribed under the Retirement Benefits Act and breach of fiduciary duty.

15. In their rebuttal, the Applicant filed a Supplementary Affidavit sworn by Kimutai Hosea Kili on 14th April, 2022. He reiterated that the 3rd Respondent’s affidavit reveals an equivocal admission of the Applicant’s case. Accordingly, he averred that the depositions in the 2nd Respondent’s affidavit are frivolous given that meetings, approvals and follow-ups alluded to in paragraphs 8 to 11 of the 3rd Respondent’s affidavit would not have taken place before the completion of background checks or due diligence. Be that as it may, he averred that the 2nd Respondent has never contacted the Applicant after the due diligence exercise conducted on 23rd July, 2021 to obtain any additional information. He therefore urged that the application be allowed as prayed.

Parties’ Submissions 16. The Applicant filed written submissions dated 6th April, 2022 in support of the motion. Counsel submitted that the Board failed to understand and give effect to section 167 (6) of the Act that the Applicant may seek administrative review within fourteen days of date of occurrence of breach at any stage of the procurement process as in such manner as may be prescribed. Further, that the Board failed to understand and give effect to section 175 (6) of the Act on the illegality of the 2nd Respondent’s impunity, intransigence, contempt and/or deliberate refusal to obey the Ruling and Orders issued by the 1st Respondent on 28th December 2021.

17. It was further counsel’s submission that the Board failed to appreciate that the Order referring the 2nd Respondent’s impunity, intransigence, contempt and/or deliberate refusal to obey the Ruling and Orders issued by the 1st Respondent on 28th December 2021 constituted an illusory or ineffective remedy given the provisions of section 40 (1) of the Act . To that end, counsel cited the case of Republic v Principal Secretary, Ministry of Defence Ex-Parte George Kariuki Waithaka [2018] eKLR where it was opined that if the ex-parte applicant has a right he must of necessity have the means to vindicate it and a remedy if they are injured in the enjoyment or exercise of it since it is a vain thing to imagine a right without a remedy.

18. Accordingly, by its failure to address its mind to sections 40(1), 44(1), 83, 88(1), 167 (1), 173, 174, 175 (1), 175(6) and 176(1)(j)(k)&(m) of the Act, the 1st Respondent’s decision was tainted with illegality and despite the remedies provided under the constitution, the Act and judicial precedents the Applicant was left with no alternative but to invoke the jurisdiction of this Honourable Court.

19. The 2nd Respondent also filed written submissions dated 21st April, 2022, 2022 opposing the motion. Counsel submitted that the Applicant has approached this court on grounds that the 1st Respondent‘s decision was materially influenced by an error of law but has however not established that the Board acted unreasonably, irrationally or with misapprehension of the law. To buttress that argument, counsel cited the Ugandan case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 and Republic v Public Procurement Administrative Review Board Ex parte Giant Forex Bureau De’ Change Limited & 2 others |2017| eKLR for the proposition that in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety however, misapprehension, or error of law or fact, is not an issue within the judicial review purview of this court.

20. It was further counsel’s submission that the Applicant is seeking this court to review the merits of the decision of the Respondent and asking this court to substitute the decision the Board arrived at procedurally, with that of this Honorable Court. To that end, counsel cited the cases of Peter Kaluma in his book Judicial Review, Law Procedure and Practice, Court of Appeal in Municipal Council of Mombasa v Republic & Umoia Consultants Ltd (2002) eKLR and Republic v Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi lntegrati Nairobi HCMA No. 1260 of 2007 (2008) KLR 728 for the proposition that courts exercising judicial review jurisdiction should not act as the court of appeal. Indeed, counsel submitted that the Applicant has not demonstrated to the Court that the findings/ determination of the 1st Respondent’s decision was materially influenced by an error of law, irrational, illegal, unreasonable or marred by any procedural impropriety.

21. It was also submitted that the Respondent’s powers under Section 173 of the Act does not include the Board going beyond their jurisdiction and cited the cases of Kenya Pipeline Ltd v Hyosung Ebara Company Ltd (2012) eKLR and Public v Public Procurement Review Board & 2 Others ex-parte Numerical Machining Complex Limited (2016) eKLR.

22. On the prayers sought, counsel cited the cases of Republic v Public Procurement Administrative Review Board Ex parte Giant Forex Bureau De’ Change Limited & 2 others (2017) eKLR, Republic v National Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Ltd (2018) eKLR and Kenya National Examination Council v Republic Ex-Parte Geoffrey Gathenji Njoroge & 9 Others (1997) eKLR and submitted that there is no defect of justice and there is not specific legal duty owed to the Applicant to warrant issuance of the orders sought.

23. The 3rd Respondent on the other hand filed written submissions dated 21st April, 2022 in support of the motion. Counsel reiterated their averments in the Replying Affidavit. Counsel submitted that the 3rd Respondent’s decision to award the Tender to the Highest Bidder, the Applicant herein, was made on 12th August 2021, thus within the Tender Validity Period and the reason for failure to release the award letter to the Applicant within the Tender Validity Period is unknown to the 3rd Respondent. Lastly, that the surreptitious omissions above should not be visited on any party who has not refused or delayed the appointment of Applicant as the administrator of the 3rd Respondent. Indeed, counsel urged that this Honourable Court should enforce and give effect to the unequivocal decision of the 3rd Respondent made on 12th August 2021 to award to the Highest Bidder, the Applicant herein and that the agents of the Trustees including the 2nd Respondent should be ordered to implement the Board's decision made on 12th August, 2021.

Analysis and Determination 24. I have considered the Notice of Motion, the statutory statement and verifying affidavit, the responses by way of replying affidavit as well as the learned submissions by counsel. The broad issue for determination is whether the applicant has established a case for this court’s review by way of judicial review pursuant to section 175 (1) of the Act, the decision of the Board dated 17th March 2022. Based on the answer thereto, the next issue would be what orders should issue.

25. A party aggrieved by the decision of the Board has a right by dint of section 175(1) of the Act to seek judicial review by the High Court within 14 days from the date of the Review Board’s decision, failure to which the decision of the Board shall be final and binding to both parties. The important aspect of this proviso that must be borne in mind in an application like the one before court is that the remedy available from the High Court is one under judicial review and not one under the appellate jurisdiction of the court.

26. What that portends naturally, then, is that this court must restrict itself within the confines of judicial review. Case law abounds on the scope of judicial review and for clarity, I will pick a few. In Council of Civil Service Unions vs Minister for the Civil Service [1984] 3 ALL ER 935 the court put it thus;“Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality’’ the second ‘’irrationality’’ and the third ‘’procedural impropriety……’’

27. In Chief Constable v Evans [1982] 3 ALL. ER 141, Lord Brightman said at page 154 para (d): -“Judicial review is concerned not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power”.At paragraph e the court added;““Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made”.28. In Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR Mativo J stated;"Judicial Review remedies are meant to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the rule of law. The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute or Regulations. The courts when exercising this power of construction are enforcing the rule of law, by requiring administrative bodies to act within the ‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. (See also Republic v. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR, Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & Another [2014] eKLR and Kenya Pipeline Company Limited v Hyosung Ebara Company Limited).

28. And finally, as regards the boundaries of merit review, useful guidance is found in this court’s decision (Nyamweya J, as she then was) in Republic v Public Procurement Administrative Review Board & 3 others Ex parte Techno Relief Services Limited [2021] eKLR where the court stated;“Judicial review has now also been entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action, and section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision. In addition, it was emphasized by the Court of Appeal in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, (2016) KLR that Article 47 of the Constitution as read with the grounds for review provided by section 7 of the Fair Administrative Action Act, reveals an implicit shift of judicial review to include aspects of merit review of administrative action, even though the reviewing court has no mandate to substitute its own decision for that of the administrator.23. The standards of merit review set out in section 7 (2) of the Act are as follows:(2)A court or tribunal under subsection (1) may review an administrative action or decision, if-(a)the person who made the decision-(i)was not authorized to do so by the empowering provision;(ii)acted in excess of jurisdiction or power conferred under any written law;(iii)acted pursuant to delegated power in contravention of any law prohibiting such delegation;(iv)was biased or may reasonably be suspected of bias; or(v)denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;(b)a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;(c)the action or decision was procedurally unfair;(d)the action or decision was materially influenced by an error of law;(e)the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;(f)the administrator failed to take into account relevant considerations;(g)the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;(h)the administrative action or decision was made in bad faith;(i)the administrative action or decision is not rationally connected to-(i)the purpose for which it was taken;(ii)the purpose of the empowering provision;(iii)the information before the administrator; or(iv)the reasons given for it by the administrator;(j)there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;(k)the administrative action or decision is unreasonable;(l)the administrative action or decision is not proportionate to the interests or rights affected;(m)the administrative action or decision violates the legitimate expectations of the person to whom it relates;(n)the administrative action or decision is unfair; or(o)the administrative action or decision is taken or made in abuse of power24. It is evident from this provisions that this Court has jurisdiction to review the decisions of subordinate courts and quasi-judicial bodies, of which the 1st Respondent is one. It is also inaccurate and one-dimensional to classify this Court’s review jurisdiction as being limited to the decision making process of an administrative body or subordinate court, as it is evident that the Court can also review the merits of a decision in judicial review. The applicable restraints in the exercise of its judicial review jurisdiction are that the Court must be careful not to usurp and interfere with the matters entrusted to an administrative body or subordinate court to decide in the first instance, as its jurisdiction is supervisory. In addition, the Court cannot substitute its decision or preferred outcome with that of the said bodies or courts, hence the restrictions on the extent of merit review that can be undertaken in judicial review.25. Coming to the permissible merit review, firstly, as shown by the applicable standards of review in section 7 of the Fair Administrative Action Act, the legality of decision making extends beyond merely the process, and include aspects of reasonableness, proportionality and fairness of the decision. Secondly, the merit review by a judicial review Court may extend to correcting any errors made by a decision making body as to the existence of precedent facts, and in the application and interpretation of the law, in reviewing the legality of the decisions, and if the bodies have acted within their powers. Hence the remedies available to a judicial review Court in this regard of quashing illegal decisions and requiring public bodies to apply the correct law and procedure."

29. It is the applicant’s contention that the Board failed to understand and give effect to section 167 (6) of the Act that the Applicant may seek administrative review within fourteen days of date of occurrence of breach at any stage of the procurement process as in such manner as may be prescribed. Further, that the Board failed to understand and give effect to section 175 (6) of the Act on the illegality of the 2nd Respondent’s impunity, intransigence, contempt and/or deliberate refusal to obey the Ruling and Orders issued by the 1st Respondent on 28th December 2021.

30. The 2nd respondents position is that it has not been shown that the Board acted unreasonably irrationally or with misapprehension of the law. It is urged that the application before court is an invite to the court to delve into the merit review of the Board’s decision.

31. The 3rd Respondent’s position is that the applicant rightly won the tender and this was within the tender validity period. The 3rd Respondent is unaware of the reason why the letter of award was not released to the applicant. That omission should not be visited on any party who has not refused or delayed the appointment of the applicant as the administrator.

32. Within this background and noting the positions taken by the parties, it is necessary to have a peek at the proceedings and the decision of the Board in this court’s endeavour in determining the propriety or otherwise of the proceedings and eventual decision.

33. In its elaborate decision dated 17th March 2022, the Board distilled the following issues for determination;i.Whether the Respondent complied with the Orders of the Board as contained in the Decision of the Board dated 28th December 2021 in Request for Review No.148 of 2021 CPF Financial Services Limited v The Accounting Officer, The Public Service Superannuation Scheme;ii.Whether the tender validity period of the subject tender has expired; andiii.What are the appropriate orders the Board should grant in the circumstances.

34. In answer to issue No. 1 above, the Board expressed itself as follows;“It is common ground that as at 11th of January 2022, the 14th day from the date of the Board's Decision of 28th December 2021 in Request for Review No.148 of 2021, the Respondent had not notified the Applicant of the outcome of evaluation of the subject tender. In fact, the Respondent has admitted that the due diligence procurement process could not be logically concluded within the stipulated period because of background checks being conducted on the Applicant.We note the Respondent never approached the Board to seek for more time to comply with the first order (Order No.1) of the Board's Decision of 28th December 2021 in Request for Review No.148 of 2021 neither has the Respondent furnished the Board with evidence of the particulars of the background checks the Respondent alleges to be conducting on the Applicant.We have perused the confidential documents submitted by the Respondent pursuant to Section 67(3)(e) of the Act and note that the Respondent purported to extend the tender validity period of the subject tender for a period of 30 days with effect from 20th January 2022 to 18th February 2022 vide a letter dated 10th January 2022 addressed to the Applicant by the Respondent.It is common ground that the Respondent did not extend the tender validity period of the subject tender from 11th January 2022 as directed by the Board in the second order (Order No.2) of the Board's Decision of 28th December 2021. From the foregoing and in the circumstances, we find that the Respondent did not comply with the Orders of the Board as contained in the Decision of the Board dated 28th December 2021 in Request for Review No.148 of 2021; CPF Financial Services Limited v The Accounting Officer, The Public Service Superannuation Scheme.’’

35. There is evidence from the record that the applicant was found to have submitted the lowest evaluated responsive tender. That is affirmed by the due diligence exercise initiated by the 2nd Respondent on the Applicant. As observed by the board above, the delay allegedly occasioned by the due diligence is not substantiated. In the Board’s own words “…… neither has the Respondent furnished the Board with evidence of the particulars of the background checks the Respondent alleges to be conducting on the Applicant.’’

36. Suffice it to note that compliance with the Board’s orders was not subject to conditions. The fact that the delay is not explained introduces opaqueness in the tendering process. Public procurement is a matter of great public interest. No wonder the people in the making of their Constitution 2010 found a place for it in Article 227 in which it is provided that when any state organ or any other public entity contracts for goods and services, it shall do so in a system that is fair, equitable, transparent, competitive and cost effective. No procuring entity should get away with any malfeasance in a public procurement. Neither should a tenderer be exposed to unfair process.

37. As held in IEBC vs National Super Alliance Kenya & 6 Others [2017] eKLR, procuring entities are bound by Articles 10, 47, and 227 of the Constitution. I hasten to add that in the same breadth, the Board is no exception. It is the first line of defence when threats of breach or actual breach of these constitutional values and principles occur. The Board must rise to the occasion and rein in any entity inclined to breach the principles of procurement provided in the constitution and the law. Any dereliction of this duty must be checked by this court under the judicial review powers donated by section 175 (1) of the Act. The powers and jurisdiction of the Board are wide. In the case of Kenya Pipeline co Ltd vs Hyosung Ebara Co. Ltd and Others [2012] eKLR the Court of appeal described the Board as follows;“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear 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.’’

38. The powers are wide and enormous. Section 173 provides;“Upon completing the Review, the Review Board may do any one of the following:a)Annul anything the accounting officer of a procuring entity has done in the procurement of disposal proceedings in their entirety;b)Give directions to the accounting officer of a Procuring Entity with respect to anything to be done or redone in the procurement or disposal proceedings;c)Substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;d)Order the payment of costs as between parties to the review in accordance with the scale as prescribed ande)Order termination of the procurement process and commencement of a new procurement process.

39. Faced with the circumstances in this case, the Board shirked its duty to supervise public procurement. It proceeded to lament helplessly yet had it taken into account it powers and jurisdiction and considered the options provided by section 173 of the Act, it may have reached a different finding. The board ended up throwing the baby with the bath water blaming the applicant whose only fault was submitting a responsive tender and who had a legitimate expectation that the procuring entity would observe the constitutional and legal principles governing public procurement and that in default the Board would be a safe refuge for redress. This is demonstrated by the applicant’s unrelenting approach to the board twice for a remedy. In my view, once there was default by the 2nd respondent and the Board gave orders and directions on the completion of the procurement process, the onus was on the Board to ensure compliance in the completion process and in the absence of compliance apply its jurisdiction and powers fully to guarantee a fair, equitable, transparent and competitive process. The Board should not be held at ransom by a rogue procurement entity who deliberately runs the clock to ensure that the validity of a tender expires. It retains the power to order as many extensions of the validity to achieve a procurement that is compliant to the constitution and the law. Notably, under section 88 of the Act, there is no limit on extensions by the Board.

40. It is not lost on this court that the power of the Court to Review an administrative action is extraordinary. It is exercised sparingly, in exceptional circumstances where illegality, irrationality or procedural impropriety has been proved. How that conclusion is to be reached is not statutorily ordained and will depend on established principles informed by the constitutional imperative that administrative action must be lawful, reasonable and procedurally fair. [See Gauteng Gambling Board v Silverstar Development 2005 (4) SA 67 (SCA) paras 28-29].

41. In this case, the blame heaped on the Applicant, a hapless tenderer whose legitimate expectation and fair treatment were already breached by the 2nd Respondent is not only unfair but unreasonable and irrational. The attempt to blame the Applicant for the expiry of the validity period of the tender stands out as a sore thumb. The failure to exercise the jurisdiction and powers under section 173, was, in my view based on a misapprehension of the law. In this context therefore, the decision of the Board is amenable to judicial review. In so holding, am guided by the decision in Republic v Public Procurement Administrative Review Board; Leeds Equipments & Systems Limited (interested Party); Ex parte Kenya Veterinary Vaccines Production Institute [2018] eKLR, where Nyamweya J (as she then was) held as follows…“It is now an established principle of law that the decision of a public body will be unlawful if it is irrational or unreasonable, in the sense of being a decision which no public body acting reasonably would have reached. This was principle was settled by the decisions in Associated Provincial Picture Houses vs Wednesbury Corporation(1948)1KB 223 and Council of Civil Service Unions vs The Minister for the Civil Service (1985) 1 AC 374. This ground was also explained in Pastoli v Kabale District Local Government Council & Others, (supra) as follows:“…Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards…”

42. I concur with the holding of the court in Republic v Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & another [2021] eKLR where it was stated;“It is worth noting that the Respondent acts as an appeal channel in the procurement process against decisions or complaints against the procuring entity hence the powers to exercise inherent jurisdiction to make decisions even where there is no express provision for the just determination of a matter in controversy by applying section 173. ’’This is what the board ought to have done in the instant case.

43. In explaining the powers of the court in judicial review the court proceeded to state;“Article 47(3) of the constitution gives this court the mandate to review the decision of an administrative body (the review board) if it fails to take into account material factors or if it takes into account immaterial factors. Section 7(2) as read with section 11(1) (e) of the Fair Administrative Action Act provides grounds for quashing of decisions. They include the grounds of relevant and irrelevant considerations in a decision, the rationality, and reasonableness of a decision, its proportionality, whether legitimate expectations have been violated by the decision, and whether the decision was made for proper or improper purposes. These grounds are questions of law on which there are settled applicable principles, and which of necessity entail a merit review of the impugned decision in the context of the adduced evidence”.

44. For reasons stated, the main issue for determination answers in the affirmative.

45. So what orders should issue? The applicant has sought a raft of orders in its prayers. Guided by the Court of Appeal decision in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the appropriate orders to issue are;i.An order of certiorari be and is hereby issued to bring into this Honourable Court, to be quashed, the 1st Respondent’s decision delivered on 17th March 2022 in Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme.ii.An order of Mandamus be and is hereby issued to compel the 1st Respondent to re-hear/re-consider Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme, taking into account the findings herein within 30 days.iii.Pending re hearing and determination in (ii) above, an order of prohibition do issue precluding the 2nd and 3rd Respondents and their officers, servants and/or agents from terminating, re-advertising and/or awarding the tender for the administration of the Public Service Superannuation Fund to any external administrator other than the Applicant.iv.Pending re hearing and determination in (ii) above an order of prohibition do issue precluding the 2nd and 3rd Respondents and their officers, servants and/or agents from resorting to the internal administration of the Public Service Superannuation Fund.v.Each Party to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 6THDAY OF MAY 2022…………………………………..A. K. NDUNGUJUDGE