https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12541

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Judicial Review Division** **HCJR No. E220 of 2026** **Between** **Republic…………………….…............................................................Applicant** ***-vs-*** **Public Procurement Administrative Review Board........................Respondent** **Accounting Officer, Nairobi City County..…………….….1st Interested Party** **Nairobi City County………...……………………...………...2nd Interested Party** **Rentco Africa Limited……………………………………...….3rd Interested Party** ***-and-*** ***Ex Parte:* Metonia Enterprises Limited** **Judgment** 1. **Background** 2. This Judicial Review Application arises from the decision of the Public Procurement Administrative Review Board (the Respondent) delivered on 16 June 2026 in Request for Review No. 73 of 2026 concerning *Tender No. NCC/M&W/T/170/2025–2026* for the Leasing of Vehicles, Plant and Equipment for a period of four years floated by Nairobi City County (the 2nd Interested Party). 3. The *ex parte* Applicant, Metonia Enterprises Limited, participated in the procurement process and contends that although it successfully passed the preliminary and technical evaluation stages, its bid was subsequently disqualified at the financial evaluation stage, culminating in the award of the tender to the 3rd Interested Party, Rentco Africa Limited. Aggrieved by that decision, the Applicant lodged Request for Review No. 73 of 2026 before the Respondent challenging the evaluation process and the award of the tender. 4. The record of the proceedings before the Respondent as captured in the Respondent’s determination demonstrates that during the said proceedings, the Procuring Entity filed its response while the 3rd Interested Party subsequently entered appearance and filed a Replying Affidavit both dated 16 June 2026 despite not having been named as a party in the Request for Review. Upon hearing the parties, the Respondent upheld a preliminary objection that the Request for Review was incompetent for failure to join the successful tenderer as required under Section 170(c) of the Public Procurement and Asset Disposal Act, held that it lacked jurisdiction to entertain the Request for Review and consequently struck out the proceedings without determining the substantive complaints raised by the Applicant. This preliminary objection was raised orally by the 3rd Interested Party during the hearing. 5. Dissatisfied with that determination, the *ex parte* Applicant obtained leave to institute the instant proceedings and thereafter filed the substantive motion being the Notice of Motion dated 1 July 2026 seeking: 6. *An order of certiorari be and is hereby issued removing into the High Court the Respondent’s decision dated 16th June 2026 dismissing the request for review Application No. 73 of 2026 in regards to Tender No. NCC/M&W/T/170/2025-2026 for leasing of vehicles, plant and equipment for purposes of being quashed.* 7. *An order of certiorari be and is hereby issued removing into the High Court the 1st and 2nd Interested Parties’ decision dated 14th May 2026 disqualifying the ex parte Applicant bid in relation to Tender No. NCC/M&W/T/170/2025-2026 for purposes of being quashed.* 8. *An order of prohibition be and is hereby issued restraining 1st and 2nd Interested Parties’, their officers, servants and/or agents, from executing a contract or transaction in respect to Tender No. NCC/M&W/T/170/2025-2026 for leasing of vehicles, plant and equipment with the 3rd Interested Party or any other company or body.* 9. *An order of mandamus be and is hereby issued compelling the Respondent to hear and determine, on its merit, the ex parte Applicant request for review application no. 73 of 2026 dated 29th May 2026 in respect to Tender No. NCC/M&W/T/170/2025-2026 for leasing of vehicles, plant and equipment before differently constituted panel.* 10. *Such further and other reliefs as this Honourable Court may deem just and expedient to grant* 11. *The costs of and incidental to the Application be provided for.* 12. The Motion is supported by the Statutory Statement, the Verifying Affidavit sworn by Mr. Sukhraj Sokhi on 29 June 2026 and the Further Affidavit sworn on 17 July 2026. The *ex-parte* Applicant contends that the Respondent unlawfully declined jurisdiction by entertaining and determining a preliminary objection that had neither been formally filed, paid for nor served upon it, thereby denying it a fair hearing and an opportunity to have its Request for Review determined on the merits. It further avers that the impugned decision was tainted by illegality, irrationality and procedural impropriety, and that the Respondent exceeded its statutory mandate by determining the dispute on matters not properly before it. 13. The Respondent opposed the Motion through a Replying Affidavit sworn on 14 July 2026 by Mr. Philemon Kiprop, the Secretary to the Public Procurement Administrative Review Board, together with written submissions dated 16 July 2026. The Respondent avers that the impugned decision was lawfully, fairly and properly arrived at after considering the Request for Review, the responses, the affidavits, written submissions, oral arguments and the confidential procurement documents furnished by the Procuring Entity. It maintains that the Board correctly determined that the *ex parte* Applicant had failed to comply with the mandatory provisions of Section 170(c) of the Public Procurement and Asset Disposal Act by omitting to join the successful tenderer to the Request for Review, thereby depriving the Board of jurisdiction to entertain the matter. The Respondent further contends that this Court’s supervisory jurisdiction is confined to reviewing the decision-making process and not the merits of the decision, and that the present application is, in any event, time barred under Section 175(1) of the Act. 14. The 1st and 2nd Interested Parties opposed the Motion through a Replying Affidavit sworn on 14 July 2026 by Dr. Machel Waikenda, the 2nd Interested Party’s Chief Officer for Mobility and Works. The 1st and 2nd Interested Parties associated themselves with the Respondent's position. They aver that the procurement process was undertaken in accordance with the Constitution, the Public Procurement and Asset Disposal Act, the Regulations and the tender document, and that the *ex parte* Applicant's bid was found to be financially uncompetitive during the financial evaluation. They further contended that the Request for Review was incompetent for failure to comply with the mandatory provisions of Section 170(c) of the Act, that the Board correctly declined jurisdiction, and that no basis has been established for this Court to interfere with either the procurement process or the impugned decision. 15. The 3rd Interested Party, Rentco Africa Limited, opposed the Motion through a Replying Affidavit sworn on 7 July 2026 by its Group Chief Executive Officer, Mr. Robert Kanda Nyasimi, together with written submissions dated 20 July 2026. It averred that it was lawfully awarded the subject tender after submitting the lowest evaluated substantially responsive bid in the sum of KShs. 3,617,599,381.92, whereas the *ex parte* Applicant’s bid of KShs. 6,644,138,084.15 was found to be abnormally high and financially uncompetitive. It further contended that although it eventually entered appearance and participated in the proceedings before the Board, such participation arose through its own diligence after discovering the existence of the proceedings, and did not cure the *ex parte* Applicant’s failure to join it as a mandatory party at the commencement of the Request for Review as required under Section 170(c) of the Act. According to the 3rd Interested Party, the omission rendered the Request for Review incompetent, *ab initio*, leaving the Board with no jurisdiction. 16. In a Further Affidavit sworn on 17 July 2026 by Mr. Sokhi, the *ex parte* Applicant reiterated that the present proceedings challenge the legality of the Respondent’s decision-making process rather than the merits of the procurement. Mr. Sokhi joined issue with the averments contained in the replying affidavits and maintained that the Respondent acted illegally, irrationally and in breach of the rules of natural justice by basing its decision on a preliminary objection that had not been formally filed, paid for or served upon the ex parte Applicant. He further averred that whereas the preliminary objection pleaded by the 3rd Interested Party challenged the competence of the Request for Review under Section 167(2) of the Act, the Respondent improperly permitted the 3rd Interested Party to raise and argue a different jurisdictional objection under Section 170(c), from the bar, thereby ambushing the Applicant and denying it adequate notice and an opportunity to prepare its response. He further contended that the Respondent’s own decision acknowledged that a fair hearing entails adequate notice and sufficient opportunity to prepare one’s case, yet failed to accord the Applicant the same protection. 17. In its written submissions dated 17 July 2026, the *ex parte* Applicant reiterates that the impugned decision is amenable to judicial review on grounds of illegality, irrationality and procedural impropriety. It submits that this Court is concerned solely with the legality of the Respondent's decision-making process and not the merits of the procurement dispute. It argues that the Board unlawfully founded its decision on an objection that did not form part of the pleadings before it, thereby violating the Applicant's right to fair administrative action and a fair hearing. In support of its submissions, it relies, inter alia, on ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, Mombasa Cement Ltd v Speaker of the National Assembly & Another [2018] KEHC 5197 (KLR)*** on the scope of judicial review. 18. The Respondent, in its submissions dated 16 July 2026, maintains that the Board correctly upheld the preliminary objection on jurisdiction, arguing that compliance with Section 170(c) of the Public Procurement and Asset Disposal Act is mandatory and that the failure to join the successful tenderer rendered the Request for Review incompetent from inception. It further submits that the Applicant is inviting this Court to re-evaluate the merits of the Board's determination contrary to the settled principles governing judicial review, and that the application is time-barred under Section 175(1) of the Act. In support of its position, the Respondent relies on, among other authorities, ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, Republic v Karisa Chengo & 2 Others [2017] eKLR and Aprim Consultants v Parliamentary Service Commission & Another (Civil Appeal No. E039 of 2021) [2021] KECA 1090 (KLR).*** 19. The 1st and 2nd Interested Parties filed written submissions dated 22 July 2026. They submit that the procurement process was undertaken in strict compliance with the Constitution, the Public Procurement and Asset Disposal Act, 2015 and the attendant Regulations. They argue that the *ex parte* Applicant's Request for Review was fatally defective for failure to enjoin the successful tenderer as required under Section 170(c) of the Act and that the Respondent properly declined jurisdiction. In support of that position, they rely, inter alia, on ***Keller Customs Kenya Limited v Public Procurement Administrative Review Board & 3 Others [2026] KECA 237 (KLR) and James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 Others [2019] KECA 916 (KLR)****,* for the position that non-joinder of mandatory parties in procurement proceedings renders such proceedings incompetent. They further submit that judicial review is concerned with the legality of the decision-making process rather than the merits of the impugned decision, and that the Applicant was improperly inviting this Court to sit on appeal against the Respondent's determination. They urge the Court to dismiss the Motion with costs and to discharge the interim conservatory orders 20. The 3rd Interested Party filed written submissions dated 20 July 2026 reiterating the contents of the Replying Affidavit sworn by Mr. Nyasimi on 7 July 2026. It submits that the Applicant's omission to join the successful tenderer in Request for Review No. 73 of 2026 rendered the proceedings incompetent, *ab initio,* and deprived the Respondent of jurisdiction under Section 170(c) of the Public Procurement and Asset Disposal Act. The 3rd Interested Party relies on ***Keller Customs Kenya Limited v Public Procurement Administrative Review Board & Others, James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 Others [2019] KECA 916 (KLR),*** and ***Peesam Limited v Public Procurement Administrative Review Board & 2 Others [2018] eKLR*** in support of the position that failure to join mandatory parties in procurement disputes is fatal. The 3rd Interested Party further contends that it was lawfully awarded the tender as the lowest evaluated substantially responsive bidder, had since committed substantial financial and operational resources in reliance upon the award, and would suffer significant prejudice if the conservatory orders were allowed to subsist. It therefore urges the Court to dismiss the Notice of Motion and discharge the interim orders with costs. 21. **Analysis and Determination** 22. There are four main issues for determination which can be discerned form the pleadings and the submissions. The same are intricately linked and a resolution of one bears on another. The issues identified are: 23. *Whether the ex parte Applicant's right to a fair hearing was infringed;* 24. *Whether the omission of the 3rd Interested Party from Request for Review No. 73 of 2026 rendered the proceedings before the Respondent incompetent pursuant to Section 170(c) of the Public Procurement and Asset Disposal Act, 2015;* 25. *Whether the participation of the 3rd Interested Party in the proceedings before the Respondent cured the defect, and* 26. *Whether the judicial review remedies of certiorari, mandamus and prohibition are available in the circumstances.* 27. ***Whether the ex parte Applicant's right to a fair hearing was infringed*** 28. The right to be heard is the hallmark of civilisation. This right, being one of the pillars of the rules of natural justice, encompasses affording a party whose rights, interests or legitimate expectations are going to be affected by a decision an opportunity to be heard before the decision is made. In other words, a person should not be judged unheard. The right is reflected in our Constitution which requires administrative action to be procedurally fair (Articles 47(1)) and entrenches the right to a fair hearing (Article 50(1)). 29. The Respondent as a decision-making body is enjoined by the Constitution to afford parties who appear before it a fair hearing before reaching a determination. Consequently, the Respondent cannot determine matters which are not before it and which parties have not been given an opportunity to be heard on. A court of law or body with adjudicative powers is cautioned to determine only those matters which are presented before it and not to descend into the arena of the litigants in introducing matters that were not ventilated before it in its determination. The Court of Appeal held as follows in ***Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others [2025] KECA 671 (KLR):*** *85…to determine issues that have not been pleaded or raised by the parties, the court must be satisfied that the constitutional right to a fair hearing has not been compromised and that no party has been exposed to prejudice by that approach.* 1. Under Article 25(c) of the Constitution, the right to a fair hearing is one of the rights that may not be limited. It is trite, therefore, that a failure to accord a party the right to be heard invalidates the resultant decision. It does not matter if the decision that resulted from that process would have been the same had the affected party been accorded a chance to be heard. The Court of Appeal in ***Vickers Security Services Ltd (Supra)*** held as follows in that regard: *108. The consequence of denial of the right to a fair hearing or the right to natural justice is to vitiate the resulting decision. In General Medical Council v. Spackman [1943] 2 All ER, 337 it was held that:* *“If the principle of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared no decision.”* 1. The contention in this matter is whether the *ex parte* Applicant was accorded a fair hearing before the Respondent struck out the request for review. The facts are undisputed that the preliminary objection in respect of the Respondent’s jurisdiction under Section 170 (c) of the Public Procurement and Asset Disposal Act, 2015 (the Act) was raised by the 3rd Interested Party during the oral hearing of the request for review before the Respondent on 16 June 2026. It is also not contested that the *ex parte* Applicant responded to the objection during the said hearing. 2. The record before the Respondent demonstrates that the *ex parte* Applicant submitted that the objection founded upon Section 170(c) was raised as an afterthought. The *ex parte* Applicant further submitted before the Respondent that the non-joinder was not a sufficient basis for striking out the proceedings. 3. The record, therefore, does not support the proposition that the *ex parte* Applicant was denied an opportunity to respond. To the contrary, the proceedings demonstrate that the *ex parte* Applicant actively opposed the objection and advanced arguments in support of its position before the Respondent rendered its determination. 4. The *ex parte* Applicant has nevertheless invited this Court to find that the oral nature of the objection violated its rights under Articles 47 and 50 of the Constitution. 5. A question of a court or adjudicative body’s jurisdiction can be raised at any time and in any format: whether through pleadings or orally. The same can also be raised by the court *suo motu.* A failure to raise a jurisdictional objection through a written preliminary objection did not infringe the *ex parte* Applicant’s right to a fair hearing. This Court is guided by the Supreme Court determination in [***Aluochier v Independent Electoral and Boundaries Commission & 17 others [2022] KESC 77 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2022/77/eng%402022-12-20) where it was held as follows: *25…It is equally now firmly established that a point of jurisdiction can be raised at any time, formally by a notice of preliminary objection, grounds of opposition, viva voce during arguments or by the Court suo motu because challenging the jurisdiction of a Court is a threshold issue.* 1. Further, this Court takes cognizance of the statutory framework governing proceedings before the Respondent and the compressed timelines which should provide context when evaluating compliance with the rights under Articles 47 and 50. While these timelines do not provide a cover for violating the right to fair administrative action as well as the right to a fair hearing, compliance should be seen in that context. In this case, I am satisfied that the Respondent accorded the parties a fair hearing in the oral proceedings before rendering its decision considering that the Respondent was under a statutory duty to determine the request within twenty-one (21) days upon filing. 2. ***Whether the omission of the 3rd Interested Party from Request for Review No. 73 of 2026 rendered the proceedings before the Respondent incompetent pursuant to Section 170(c) of the Public Procurement and Asset Disposal Act, 2015.*** 3. The next issue for determination is whether the *ex parte* Applicant's failure to join the successful tenderer, Rentco Africa Limited, in Request for Review No. 73 of 2026 rendered the proceedings before the Respondent incompetent and, if so, whether the Respondent lawfully declined jurisdiction on that basis. 4. The *ex-parte* Applicant's Notice of Motion dated 1July 2026, Statutory Statement and Verifying Affidavit both dated 29 June 2026 are principally anchored on the contention that the Respondent acted unlawfully in upholding the objection founded upon Section 170(c) of the Act. The *ex parte* Applicant contends that the objection was an afterthought, was neither formally pleaded nor properly raised before the Respondent and that non-joinder or misjoinder of parties does not constitute a sufficient basis for striking out proceedings. It further maintains that the 3rd Interested Party was afforded ample opportunity to participate in the proceedings before the Respondent and, having voluntarily entered appearance, filed a Response to the Request for Review dated 16 June 2026 and participated in the hearing, it cannot subsequently challenge the Respondent's jurisdiction. 5. The Respondent, on its part, maintains that Section 170(c) of the Act is couched in mandatory terms and expressly identifies the successful tenderer as one of the parties to review proceedings. It is the Respondent's case that the omission of the successful tenderer deprived it of jurisdiction and that the issue of jurisdiction could properly be raised at any stage of the proceedings. 6. Similarly, the 1st and 2nd Interested Parties, in their submissions dated 22 July 2026, support the Respondent's position and contend that the *ex parte* Applicant failed to invoke the Respondent's jurisdiction in the manner prescribed by statute. They submit that the successful tenderer was never joined in the Request for Review lodged on 29 May 2026 and that the proceedings before the Respondent were therefore incurably defective from inception. They further submit that neither Article 159 of the Constitution, the Fair Administrative Action Act nor the principles of natural justice can be invoked to circumvent an express statutory requirement. 7. The 3rd Interested Party, in its Replying Affidavit dated 7 July 2026 and submissions dated 22 July 2026, avers that it was never served with the Request for Review and only became aware of the proceedings through its own due diligence. It states that it subsequently filed a Notice of Appointment dated 10June 2026, attended the hearing before the Respondent on 15 June 2026 and on 16 June 2026, informed the Respondent that it had not been served as it had not been joined in the proceedings. The 3rd Interested Party, however, indicated its readiness to proceed. The 3rd Interested Party consequently submits that the *ex parte* Applicant's omission was fatal and that the Respondent correctly declined jurisdiction. 8. The determination of this issue turns principally on Sections 170 and 171 of the Act. Section 170 provides as follows: *The parties to a review shall be—* *(a) the person who requested the review;* *(b) the accounting officer of a procuring entity; and* *(c) the tenderer notified as successful by the procuring entity.* 1. Equally relevant is Section 171(1) of the Act which provides that: *The Review Board shall complete its review within twenty-one days after receiving the request for the review.* 1. It is clear that the Act not only prescribes the parties to procurement review proceedings but it equally imposes strict timelines within which such disputes must be determined. The statutory architecture therefore leaves little room for delay or procedural uncertainty. The successful tenderer, whose rights stand to be directly affected by any determination of the Respondent, was expressly identified by Parliament as a mandatory party to every request for review. This may be seen, contextually, as promoting the rights under Articles 47 and 50, as well as the upholding of the principles encapsulated under Article 227 of the Constitution. 2. Having perused the Request for Review dated 29 May 2026 together with the accompanying Statement of even date, it is evident that the *ex-parte* Applicant challenged the award of *Tender No. NCC/M&W/T/170/2025-2026*. It is further apparent that, notwithstanding its knowledge that Rentco Africa Limited had been declared the successful tenderer, the *ex parte* Applicant did not name the 3rd Interested Party as a party to the proceedings before the Respondent. Indeed, the *ex-parte* Applicant has not disputed that fact either before the Respondent or before this Court. 3. The chronology of events before the Respondent, the affidavits on record and the annexures thereto is particularly instructive. The Request for Review was lodged on 29 May 2026. Pursuant to Section 171(1) of the Act, the Respondent was therefore required to determine the matter on or before 19 June 2026. However, the material before the Court demonstrates that the 3rd Interested Party only entered appearance through its advocates on 10 June 2026, approximately twelve days after the proceedings had been commenced and with only nine days remaining before the lapse of the statutory timeline. 4. The record further reveals that the hearing before the Respondent commenced on 15 June 2026, by which time approximately seventeen of the twenty-one statutory days had already elapsed. The proceedings of that date further demonstrate that the 3rd Interested Party appeared and participated notwithstanding the fact that it had not been served with the Request for Review. 5. More significantly, when the matter came up before the Respondent on 16 June 2026, counsel for the 3rd Interested Party expressly informed the Respondent that his client had not been served with the Request for Review as it had not been joined in the proceedings. Counsel nevertheless indicated that he was prepared to proceed with the hearing. 6. In the Court's considered view, these facts illuminate the very mischief that Parliament intended to address through Section 170(c) of the Act. The requirement that the successful tenderer be joined at the inception of the proceedings is not a mere procedural formality. Rather, it is intended to ensure that a party whose rights are liable to be directly affected by the Respondent's determination is afforded an adequate opportunity to participate in the proceedings within the compressed timelines established under Section 171(1) of the Act. 7. The question that therefore arises is whether such omission constituted a mere procedural irregularity or a jurisdictional defect going to the root of the proceedings. 8. The law regarding jurisdiction is settled. In ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR),*** the Supreme Court reiterated that a court or tribunal derives its jurisdiction from the Constitution or statute and cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. 9. In [***Keller Kustoms Kenya Limited v Public Procurement Administrative Review Board & 3 others [2025] KECA 243 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/243/eng%402025-02-17)the Court of Appeal held that that failure to comply with Section 170 of the Act renders a Request for Review fatally defective. The Court further held that the mandatory provisions of Section 170 cannot be overridden by considerations of legitimate expectation, fair administrative action or procedural fairness. The court held as follows: *46. Our reading of sections 168 and 170 of the Act, regulation 205(1) of the Regulations and section 31 of Cap. 2, as well as the afore-cited judicial authorities, leaves no room for any doubt that the appellant’s failure to comply with the mandatory provisions of section 170 of the Act and name the 2nd respondent’s Accounting Officer in its Request for Review was fatal and rendered its Request incompetent. Accordingly, the appellant’s contention that the 1st respondents’ decision was not according to law does not hold.* 1. Although ***Keller Customs Kenya Limited (supra)*** concerned the omission of the accounting officer under Section 170(b), this Court finds no material distinction between Section 170(b) and Section 170(c). Parliament employed identical mandatory language in prescribing all the parties to a review. It would therefore be incongruous to hold that omission of the accounting officer is fatal while omission of the successful tenderer is merely a curable procedural defect. 2. This Court is further persuaded by the submissions of the Respondent and the Interested Parties that the present dispute does not concern ordinary civil proceedings governed by the Civil Procedure Act and Rules. Procurement disputes are governed by a specialized statutory regime characterized by strict timelines, public interest considerations and expressly prescribed parties. Consequently, principles relating to misjoinder and non-joinder in ordinary civil proceedings cannot be imported into proceedings under the Act in a manner that defeats the express intention of Parliament. 3. This Court is, therefore, satisfied that the omission of Rentco Africa Limited from Request for Review No. 73 of 2026 constituted a substantive jurisdictional defect and not a mere procedural irregularity. Consequently, this Court finds that the *ex parte* Applicant failed to invoke the Respondent's jurisdiction in the manner prescribed under Section 170(c) of the Act. The Request for Review dated 29 May 2026 was therefore incompetent *ab-initio* and the Respondent was entitled, indeed obligated, to decline jurisdiction. 4. ***Whether the participation of the 3rd Interested Party in the proceedings before the Respondent cured the defect*** 5. Having found that the *ex parte* Applicant's failure to join the successful tenderer rendered Request for Review No. 73 of 2026 incompetent *ab-initio*, the Court must now determine whether the subsequent participation of the 3rd Interested Party cured that defect. 6. The *ex parte* Applicant’s averment, as discerned from the Notice of Motion, Statutory Statement, Verifying Affidavit and submissions, is that the 3rd Interested Party, having voluntarily entered appearance, filed a Response dated 16 June 2026 and participated in the proceedings before the Respondent, was estopped from subsequently challenging the Respondent’s jurisdiction. 7. The Respondent and the Interested Parties submit that neither participation, acquiescence nor consent can confer jurisdiction upon a statutory tribunal and that there can be no estoppel against a statute. The Court agrees. 8. Even though the record demonstrates that the 3rd Interested Party filed a Notice of Appointment dated 10 June 2026, attended the proceedings on 15 June 2026 and subsequently filed its Response and submissions on 16 June 2026, participation in proceedings is distinct from compliance with statutory requirements. The question is not whether the 3rd Interested Party ultimately participated, but whether such participation retrospectively cured the admitted omission under Section 170(c) of the Act. 9. As already found under the second issue, jurisdiction is conferred by statute and not by the conduct of parties. Consequently, neither waiver, acquiescence nor estoppel could confer jurisdiction upon the Respondent where Parliament has expressly prescribed the parties to a review. The subsequent participation of the 3rd Interested Party was therefore incapable of curing the defect occasioned by a failure to comply with Section 170(c) of the Act. 10. ***Whether the ex parte Applicant has established the threshold for the grant of the judicial review remedies sought*** 11. Having found that the Respondent properly declined jurisdiction pursuant to Section 170(c) of the Public Procurement and Asset Disposal Act, 2015, and that the *ex parte* Applicant has failed to establish any violation of its rights under Articles 47 and 50 of the Constitution, the remaining issue for determination is whether the *ex parte* Applicant has satisfied the threshold for the grant of the judicial review remedies sought. 12. The *ex parte* Applicant seeks, inter alia, orders of certiorari to quash the Respondent's decision dated 16 June 2026, mandamus compelling the Respondent to hear and determine Request for Review No. 73 of 2026 on its merits and prohibition restraining the implementation of the impugned procurement process. 13. It is trite that judicial review is concerned not with the merits of a decision but with the decision-making process. The supervisory jurisdiction of this Court is therefore limited to interrogating whether the impugned decision was tainted by illegality, irrationality and procedural impropriety. Those principles were succinctly enunciated in ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR.*** 14. In ***Municipal Council of Mombasa v Republic & Umoja Consultants Ltd (supra)****,* the Court of Appeal observed that judicial review is concerned with the decision-making process and not with the merits of the decision itself. Accordingly, this Court is not called upon to determine whether the *ex parte* Applicant ought to have been awarded the tender or whether the Respondent ought to have reached a different conclusion. Rather, the Court's inquiry is confined to whether the Respondent acted lawfully, rationally and fairly in arriving at its determination. 15. Having carefully reviewed the record, this Court is not persuaded that the impugned decision was tainted by illegality. To the contrary, the Respondent identified the applicable statutory provisions, considered the parties' respective positions and determined that it lacked jurisdiction by virtue of the ex parte Applicant's failure to comply with Section 170(c) of the Act. As already found, that conclusion was firmly anchored in the statute and consistent with the prevailing jurisprudence on jurisdiction. 16. Equally, the Court is unable to discern any irrationality in the Respondent's decision. An irrational decision is one that is so unreasonable that no reasonable tribunal, properly directing itself on the law and the facts, could have arrived at it. In the present case, the omission of the successful tenderer was admitted and not disputed. In those circumstances, the Respondent's decision to decline jurisdiction cannot be said to have been unreasonable or irrational. 17. Finally, the *ex parte* Applicant has failed to establish procedural impropriety. The record demonstrates that the *ex parte* Applicant was afforded an opportunity to address the jurisdictional objection before the Respondent rendered its determination. Moreover, the Respondent confined itself to the issue of jurisdiction and did not purport to determine matters falling outside its statutory mandate. 18. Having found that the *ex parte* Applicant has failed to establish illegality, irrationality or procedural impropriety, it follows that the judicial review remedies sought are unavailable. The Court is satisfied that the *ex parte* Applicant has failed to demonstrate that the Respondent's decision dated 16 June 2026 was illegal, irrational or procedurally improper. Consequently, the *ex parte* Applicant has failed to establish the threshold for the grant of the judicial review remedies of certiorari, mandamus and prohibition. 19. Consequently, the Notice of Motion dated 1 July 2026 is hereby dismissed in its entirety. Parties shall bear their own costs. **Delivered, Dated** and **Signed** at **Nairobi** this **30th** day of **July,** **2026.** **Nabil M. Orina** **Judge** ***In the presence of:*** ***Ms. Mudeizi for the ex parte Applicant*** ***Mr. Idris for the Respondent*** ***Mr. Lumumba for the 1st and 2nd Interested Parties*** ***Mr. Limo for the 3rd Interested Party*** ***Linda - Court Assistant***