[2024] KEHC 10635 (KLR)

Republic v Public Procurement Administrative Review Board & 3 others; Brooklyn Cleaning Services Limited (Exparte) (Application E161 of 2024) [2024] KEHC 10635 (KLR) (Judicial Review) (6 September 2024) (Judgment)

Neutral citation: [2024] KEHC 10635 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E161 of 2024

J Ngaah, J

September 6, 2024

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

1st Respondent

Lakeparm Cleaners Limited

2nd Respondent

Chief Executive Officer, Kenyatta University Teaching, Referral & Research Hospital

3rd Respondent

Kenyatta University Teaching, Referral & Research Hospital

4th Respondent

and

Brooklyn Cleaning Services Limited

Exparte

Judgment

1. The applicant’s application is a motion dated 26 July 2024 seeking the following orders:“1. That an order of Prohibition be issued against the 3rd and 4th Respondents, their agents, servants, employees or anyone acting on their direction, prohibiting their evaluation committee from proceeding to conduct and prepare an evaluation report and recommendations to award Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for provision of Cleaning and Sanitary Services-Lot 2 as ordered by the 1st Respondent on 12th July 2024 in Application No. 55/2024 of 21stJune 2024. 2.That this honourable court be pleased to issue an order of Certiorari to quash the decision of the 1st Respondent made on 12th July 2024 in Application No. 55 /2024 of 21st June 2024 that cancelled and set aside the Letters of Notification of award dated 10th June 2024 issued to the Applicant herein as the successful tenderer in respect of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for provision of Cleaning and Sanitary Services-Lot 2. 3.That this honourable court be pleased to issue, issue an order of Certiorari to quash the decision by 1st Respondent made on 12th July 2024 in Application No. 55/2024 of 21st June 2024, that cancelled and set aside the 3rd and 4th Respondent's procuring entity's evaluation report dated 3rd June 2024 in respect of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for provision of Cleaning and Sanitary Services-Lot 2. 4.That this honourable, be pleased to issue an order of Certiorari to quash the decision by 1st Respondent made on 12thJuly 2024 in Application No. 55/2024 of 21st June 2024 that cancelled and set aside Professional Opinion dated 5th June 2024 in respect of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for provision of Cleaning and Sanitary Services-Lot 2. 5.That this honourable court be pleased to issue an order of Certiorari to quash the decision by 1st Respondent made on 12th July 2024 in Application No. 5/2024 of 21st June 2024, that directed the 3rd and 4th Respondents' 1st evaluation committee to prepare a conclusive evaluation report with a recommendation to award Tender No. KUTRRH/TNDR/S/040/PCS-1/2023- 2024 for provision of Cleaning and Sanitary Services-Lot 2. 6.That this honourable court be pleased to issue an order of Certiorari to quash the decision by 1st Respondent made on 12th July 2024 in Application No. 55/2024 of 21st June 2024 that ordered the extension by a further 45 days from the date of its decision, the tender's validity period.7. That this honourable court be pleased to issue an order of Mandamus directed to the 1st Respondent to reinstate the Letters of Notification of award dated 10th June 2024 issued to the ex parte Applicant herein as the successful tenderer in respect of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for provision of Cleaning and Sanitary Services-Lot 2. 8.That the costs of this application be costs in the cause.”

2. The application is expressed to be brought under sections 8 and 9 of the Law Reform Act, cap. 26; section 175 of the Public Procurement and Asset Disposal Act No.33 of 2015; and, Order 53, Rule 1(1), (2) and (4) of the Civil Procedure Rules. It is based on statement of facts dated 24 July 2024 and an affidavit verifying the facts relied on sworn on even date by Mr. Abdikadir Dahir. Mr. Dahir has sworn that he is a director of the applicant company.

3. I gather from the statement and the affidavit that the applicant was a successful tenderer in a tender floated by 4th respondent (which I will henceforth also refer to as “the procuring entity”) for provision of cleaning and sanitary services. The tender was more particularly described as “TENDER No. KUTRRH/TND/8/040/PCS-2/2023-2024 FOR PROVISION OF CLEANING AND SANITARY SERVICES-LOT 2”. I will refer to this tender simply as “the tender” or “subject tender.” The award of the tender to the applicant was communicated to it by the 3rd and 4th respondents through a letter dated 10 June 2024.

4. Subsequently, the 2nd respondent challenged the award of the tender vide a request for review lodged before the 1st respondent as application no. 55 of 2024. No doubt, in lodging the request for review, the applicant invoked section 167(1) of the Public Procurement and Asset Disposal Act according to which a candidate or tenderer is entitled to seek review before the 1st respondent which is established for that purpose under section 27 of the Act. Section 167(1) reads as follows:167. Request for a review(1)Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.

5. In the request for review, the 2nd respondent sought for the following orders:“a)The entire tender process with respect to Tender No. Lot 2- KUTRRH/TNDR/S/040/PCS-2/2023-2024 for Provision of Cleaning Services including the decision of the 1st Respondent as regards final award of Tenders communicated vide letter dated 1f1h June 2024 herein be nullified and set aside;b)In the alternative, the 1ˢᵗ Respondent be directed to award the Tender No. Lot 2-KUTRRH/TNDR/S/040/PCS-2/2023- 2024 for Provision of Cleaning Services to the Applicant upon extension of its tender validity period.c)The Public Procurement Administrative Review Board to make such and further orders as it may deem fit and appropriate in ensuring that the ends of justice are fully met in the circumstances of this Request for Review;d)The Respondents be compelled to pay to the Applicant the costs arising from, and incidental to this Request for Review.”The 3rd and 4th respondents were named as the 1st and 2nd respondents respectively. The applicant, despite having been awarded the subject tender, was not named in the proceedings in any capacity.

6. At the conclusion of the hearing, the 1st respondent allowed the request for review and, in so doing, it ordered as follows:“1. The Letters of Notification of Award dated 10th June 2024 issued to the applicant and all the other unsuccessful tenders in respect of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for Provision of Cleaning and Sanitary Services-Lot 2 be and are hereby cancelled and set aside.2. The Letter of Notification of-Award dated 10th June 2024 issued to the Interested Party as the successful tenderer in respect of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for Provision of Cleaning and Sanitary Services-Lot 2 be and is hereby cancelled and set aside.3. The Procuring Entity's Evaluation Report dated 3ʳᵈ June 2024 with respect to Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for Provision of Cleaning and Sanitary Services-Lot 2 be and is hereby cancelled and set aside.4. The Professional Opinion dated 5ᵗʰ June 2024 with to respect to Tender No. KUTRRH/TNDR/S/040/PCS-1/2023- 2024 for Provision of Cleaning and Sanitary Services-Lot 2 signed for and on behalf the Procuring Entity's Manager Supply Chain Management's be and is hereby cancelled and set aside.5. The Accounting Officer is hereby ordered to direct the 1ˢᵗ Evaluation Committee to prepare a conclusive Evaluation Report with a recommendation to award Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for Provision of Cleaning and Sanitary Services-Lot 2 to lowest responsive evaluated bidder within 14 days taking into consideration the findings in the Due Diligence Report dated 6ᵗʰ June,2024 and the Board's findings herein.6. The tender validity period of Tender No. KUTRRH/TNDR/S/040/PCS-1/2023-2024 for Provision of Cleaning and Sanitary Services-Lot 2 be and is hereby extended for a further period of 45 days from the date of this decision.7. In view of the Board's findings and orders above, each party shall bear its own costs in the Request for Review.”

7. The applicant is aggrieved by this decision for the simple reason that although these orders were effectively adverse to the applicant’s interest, considering that it had been awarded the subject tender, it was never given an opportunity to be heard. In other words, it was condemned unheard.

8. The 1st respondent has opposed the application and filed a replying affidavit to that end. The affidavit was sworn by Mr. James Kilaka who has introduced himself as “a procurement professional and the acting secretary of the public procurement administrative review board” which is named as the 1st respondent in this application.

9. Mr. Kilaka has admitted that on 21 June 2024, the 2nd respondent filed the request for review No. 55 of 2024, challenging the decision of the 3rd respondent in respect of the subject tender. On even date, the 1st respondent sent a Notification of Appeal to the 3rd and 4th Respondents inviting them to file a response to the request for review; they filed the response on 4 July 2024.

10. Further, on 4 July 2024, the 1st respondent, forwarded a copy of the request for review to all tenderers that participated in the subject tender, including the applicant, requiring them to respond to the request for review within 3 days from 4 July 2024. The communication to the tenderers was by way of email of even date. However, none of tenderers responded and filed a response.

11. By an email dated 5 July 2024, the 1st respondent notified the parties to the review that the request for review would be heard on 8 July 2024. After the virtual hearing, the 1st respondent retreated to prepare its decision which was subsequently delivered on 12 July 2024. The decision was sent to the parties’ representatives on the even date.

12. As to when and how the applicant was notified of the request of review, Mr. Kilaka has sworn that on 4 July 2024, the 1st respondent requested and received from the 3rd and 4th respondents details of the applicant’s email address and that it is the email address it was given by these parties the 1st respondent used to communicate with the applicant with respect to the proceedings in request for review No. 55 of 2024.

13. As far as the request by the applicant to be heard on the eve of the delivery of the impugned decision, Mr. Kilaka has sworn that it was impractical due to the strict statutory timeline within which the 1st respondent was enjoined to hear and determine request for review. He alleged that the applicant, having skipped the hearing on 8 July 2024, could not purport to seek to be heard on the eve of the delivery of the 1st respondent’s decision. Even then, the 1st respondent insisted that the email used to communicate to the applicant was that provided by the 3rd and 4th respondents.

14. Ms. Alice Wanjiku Kiai swore a replying affidavit on behalf of the 2nd respondent and introduced herself as the 2nd respondent’s managing director. The 2nd respondent has owned up to the request for review out which arose the impugned decision. In summary, the 2nd respondent has opposed the applicant’s application because the applicant has not explained how he got wind of the application for review, albeit, late.

15. I have considered the submissions filed by both the applicant and the respondents. In my humble view, the crux of the applicant’s application is hinged on the answer to the question whether the applicant was given an opportunity to be heard. Based on the material before court, the answer to this question appears to be in the negative. I have come to this conclusion for the reason that, first, the applicant was not even named in the request for review proceedings either as a respondent or in any other capacity, for that matter.

16. Yet as a party which had been notified of the award of the tender, the applicant was entitled to be named and to participate in the request for review proceedings. This is a mandatory requirement under section 170 of the Public Procurement and Asset Disposal Act. This provision of the law reads as follows:170. Parties to reviewThe parties to a review shall be—(a)the person who requested the review;(b)the accounting officer of a procuring entity;(c)the tenderer notified as successful by the procuring entity; and(d)such other persons as the Review Board may determine.(Emphasis added).

17. There is no dispute that the applicant was “the tenderer notified as successful by the procuring entity” as put forth in section 170 (c) and, therefore, considering the mandatory terms in which this provision of the law is couched, the applicant in the request for review was enjoined to name the applicant in the instant application as a party; most probably as one of the respondents. It follows that the glaring breach of section 170 (c) of the Act by the omission of the applicant in the request for review, rendered the applicant’s application before the 1st respondent fatally defective ab initio and ought not to have been entertained in the first place.

18. Be that as it may, I am a little bit perturbed that this rather obvious omission could escape the attention of the 1st respondent. Although the applicant would not fall into the category of persons described in section 170 (d) of the Act, the lingering question is why the sheer fact that the applicant was a successful tenderer was not sufficient enough to prick the 1st respondent’s conscience that the applicant may be a necessary party in the request for review proceedings, more so, considering that the orders ultimately made in determination of the application were prejudicial or adverse to the applicant’s interests.

19. The second reason I hold that the applicant was not given the necessary opportunity to be heard before the 1st respondent arrived at its decision is that, contrary to Mr. Kilaka’s suggestion in his replying affidavit that the applicant, together with the rest of the tenderers were notified not only of the filing of the request for review but that they were also informed of the hearing date, there is no proof of such notification to the applicant.

20. The applicant’s contention on this issue is that the purported communication to the applicant was through an email address that is unknown to the applicant and which is different from the address that the applicant provided in his bid documents and to which the 1st respondent was accessible upon being seized of the request for review. It would have been easier for the 1st respondent to controvert the applicant’s contention by simply showing that the notifications were sent to the applicant’s address. However, Mr. Kilaka’s depositions in answer to the applicant’s denial that it received the notifications are as follows:“18. That in the subject tender, on 4th July 2024 the 1st Respondent requested and received from the 3rd and 4th Respondents details of the Ex-parte Applicant’s email address and it is this email address that the 1st Respondent used to send communications to the Ex-parte Applicant in respect of the proceedings in Request for Review No. 55 of 2024.

21. Mr. Kilaka has not provided in his affidavit the applicant’s email address that was allegedly requested for and received from the 3rd and 4th respondents. In any case, one wonders why such request was necessary when the applicant’s address was contained in the documents received by the respondent from the procuring entity in accordance with section of the 67(3) (e) of the Act. To discount any doubt that the 1st respondent was in possession of the documents that contained the applicant’s address, it noted as follows at paragraphs 66 and 97 its decision:“66. The Board has considered all documents, submissions and pleadings together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Act and finds the following issues call for determination…”97. “…The Board has also noted from the Confidential File submitted to it under Section 67(4) of the Act that the notifications sent to the other unsuccessful tenderers take a similar format and are not complete in terms of the information contemplated in law…”Section 67 of the Act to which reference has been made in the foregoing paragraphs reads as follows:67. Confidentiality(1)During or after procurement proceedings and subject to subsection (3), no procuring entity and no employee or agent of the procuring entity or member of a board, commission or committee of the procuring entity shall disclose the following—SUBPARA (a)information relating to a procurement whose disclosure would impede law enforcement or whose disclosure would not be in the public interest;SUBPARA (b)information relating to a procurement whose disclosure would prejudice legitimate commercial interests, intellectual property rights or inhibit fair competition;SUBPARA (c)information relating to the evaluation, comparison or clarification of tenders, proposals or quotations; orSUBPARA (d)the contents of tenders, proposals or quotations.(2)For the purposes of subsection (1) an employee or agent or member of aboard, commission or committee of the procuring entity shall sign a confidentiality declaration form as prescribed.(3)This section does not prevent the disclosure of information if any of the following apply—(a)the disclosure is to an authorized employee or agent of the procuring entity or a member of a board or committee of the procuring entity involved in the procurement proceedings;(b)the disclosure is for the purpose of law enforcement;(c)the disclosure is for the purpose of a review under Part XV or requirements under Part IV of this Act;(d)the disclosure is pursuant to a court order; or(e)the disclosure is made to the Authority or Review Board under this Act.(4)Notwithstanding the provisions of subsection (3), the disclosure to an applicant seeking a review under Part XV shall constitute only the summary referred to in section 67 (2)(d)(iii).(5)Any person who contravenes the provisions of this section commits an offence as stipulated in section 176(1)(f) and shall be debarred and prohibited to work for a government entity or where the government holds shares, for a period of ten years. (Emphasis added).

22. No doubt, the confidential file would include the procurement records which, in these circumstances, would include the tenderers’ bids that ordinarily contain their particulars which include their addresses. As far as the applicant is concerned, the tender it submitted, a copy of which is exhibited and marked as “AD 3” on the affidavit of Abdikadir Dahir shows that the applicant’s email addresses to be info@brooklyncleaningservice.ke.com and brooklyncleaningserviceke@gmail.com

23. The email addresses were apparent on the face of the applicant’s bid documents to which, as noted, the 1st respondent had access. But even if the 1st respondent felt the need to enquire from the 3rd and 4th respondents’ of the applicant’s email address, there is no evidence of their answer to those enquiries. As a matter of fact, there is no evidence from the 1st respondent of the email address it used to communicate to the applicant or, to be more precise, that the email address or addresses it used was or were the ones indicated on the applicant’s bid documents.

24. It follows that in the absence of any contrary evidence, the court is entitled to assume that the communications purportedly made to the applicant were through the email address indicated as “Brooklyncleaningservice@gmail.com” which is the email address appearing on 1st respondent’s notification for tender review in its email dated 4 July 2024. There is no doubt that this email address is different from the applicant’s email addresses indicated on its bid documents and, therefore, the applicant cannot be assumed to have been notified of the request for review proceedings.

25. So, if the applicant was omitted from the request for review and was, in any event not notified of the request for review proceedings, the 1st respondent’s decision would thereby be tainted on grounds of illegality and procedural impropriety. These grounds have been explained in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. For our purposes, it is the grounds of illegality and procedural impropriety that are of concern. The learned judge explained these grounds as follows:“By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable…I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

26. The 1st respondent’s decision would fall on the ground of illegality because the 1st respondent flouted the provisions of section 170 of the Act in entertaining a request for review when, the applicant, being a mandatory party, was omitted from the application. Without belabouring the point, the 1st respondent either deliberately disregarded the provisions of section 170 of the Act or simply, it did not give effect to this provision.

27. The 1st respondent’s decision would fall on ground of procedural impropriety because the respondent simply failed to observe basic rules of natural justice or failed to act with procedural fairness towards the applicant who was obviously affected by the 1st respondent’s decision. It has been held in O'reilly and Other versus Mackman and Others (1983) UKHL 1 at page 5 that:“But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilised legal system that it is to be presumed that parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement… In the absence of express provision to the contrary parliament whenever it provides for the creation of a statutory tribunal must be presumed not to have intended that the tribunal should be authorised to act in contravention of one of the most fundamental rules of natural justice or fairness: audi alteram partem.” (per Lord Diplock).

28. This is codified in section 4 of the Fair Administrative Action Act, No. 4 of 2015 which states as follows:4. Administrative action to be taken expeditiously, efficiently, lawfully etc.(1)Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.(2)Every person has the right to be given written reasons for any administrative action that is taken against him.(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-(a)prior and adequate notice of the nature and reasons for the proposed administrative action;(b)an opportunity to be heard and to make representations in that regard;(c)notice of a right to a review or internal appeal against an administrative decision, where applicable;(d)a statement of reasons pursuant to section 6;(e)notice of the right to legal representation, where applicable;(f)notice of the right to cross-examine or where applicable; or(g)information, materials and evidence to be relied upon in making the decision or taking the administrative action.(4)The administrator shall accord the person against whom administrative action is taken an opportunity to-(a)attend proceedings, in person or in the company of an expert of his choice;(b)be heard;(c)cross-examine persons who give adverse evidence against him; and(d)request for an adjournment of the proceedings, where necessary to ensure a fair hearing.(5)Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.(6)Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure. (Emphasis added).

29. Thus, the right to be heard is not just a basic principle of natural justice but, in our legal system, it has a constitutional and statutory underpinning under Article 47 of the Constitution and section 4 of the Fair Administrative Action Act (enacted to give effect to Article 47 of the Constitution) respectively.For the reasons I have given, I allow the applicant’s application only to the extent that the respondent’s decision dated 12 July 2024 is hereby quashed.

30. According to section 11(1)(e) of the Fair Administrative Action Act, this Honourable Court is empowered to, among other things, set aside the impugned decision and remit the matter for reconsideration. This section reads as follows: 11. Orders in proceedings for judicial review.(1)In proceedings for judicial review under section 8 (1), the court may grant any order that is just and equitable, including an order-(e)setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions; (Emphasis added).

31. I understand this provision to mean that the court is empowered to order the 1st respondent to hear the applicant in request for review no. 55 of 2024 before making a determination. Accordingly, and subject to the regulations in respect of conduct of proceedings under Part XV(Administrative Review of Procurement and Disposal Proceedings) of the Public Procurement and Asset Disposal Regulations, 2020, I direct the 1st respondent to give the applicant the opportunity to be heard before making its determination on request for review no. 55 of 2024. The proceedings shall be conducted and a determination made within twenty-one (21) days of the date of this judgment.

It is so ordered.

SIGNED, DATED AND UPLOADED ON THE CTS ON 6 SEPTEMBER 2024NGAAH JAIRUSJUDGE