https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7661

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW MISCELLANEOUS NO. E062 OF 2026** **REPUBLIC…………………………………….............................……APPLICANT** **VERSUS** **PUBLIC PROCUREMENT** **ADMINISTRATIVE REVIEW BOARD……………………...RESPONDENT** **AND** **THE STAR PUBLICATIONS LIMITED……...1ST INTERESTED PARTY** **THE PRINCIPAL SECRETARY,** **MINISTRY OF INFORMATION, COMMUNICATION** **AND THE DIGITAL ECONOMY……………….2ND INTERESTED PARTY** **STATE DEPARTMENT FOR BROADCASTING** **AND TELECOMMUNICATIONS………………3RD INTERESTED PARTY** **THE ACCOUNTING OFFICER, STATE DEPARTMENT OF BROASCASTING** **AND TELECOMMUNICATION……………...…4TH INTERESTED PARTY** ***EX PARTE:*** **THE STANDARD GROUP PLC** **JUDGEMENT** 1. These Judicial Review proceedings were initiated under certificate of urgency, by way of an *ex parte* chamber summons, dated 21st April 2026, for leave to commence a Motion for *certiorari* and prohibition orders*,* directed at the respondent and the interested parties, with respect to PPARB Application No. 46 of 2026 and tender number MICDE/SDBT/01/2025-2026, together with costs and interests. The leave sought was granted, on 29th April 2026. 2. The substantive Motion was filed herein, dated 30th April 2026. It is supported by the statutory statement and the affidavit verifying it, filed at the leave stage, and a supporting affidavit, sworn by the person who had deponed to the verifying affidavit. 3. According to the statement of facts and the affidavits, the *ex parte* applicant had participated in the bidding in tender number MICDE/SDBT/01/2025-2026, for provision of printing and distribution services for MyGov publication, issued by the 2nd and 3rd interested parties. It submitted a bid, which it asserts was in accordance with the tender document, including a completed price schedule. It was subsequently notified that its bid had been disqualified at the preliminary stage, on the ground that the tender price had not been indicated in the tender form. It was also disclosed that all the other bidders had failed to indicate the tender price in the tender form. Nevertheless, the 2nd and 3rd interested parties proceeded with the procurement process, by issuing a notification of intention to award, dated 17th March 2026, in favour of the 1st interested party. 4. The *ex parte* applicant was aggrieved by that process, and filed a request for review, dated 25th March 2026, in PPARB Application No. 46 of 2026, challenging the disqualification and the award of tender. Several issues are raised about the procurement process. 5. The first relates to the service of a hearing notice, on the *ex parte* applicant, by the respondent. It is averred that the hearing notice was sent via email, on 4th April 2026, which was a Saturday of the Easter weekend, notifying of a hearing on Thursday, 9th April 2026. It is asserted that the service over a weekend is deemed to have been effected on the Monday following, which was, in this case, an Easter Monday, and, therefore, a public holiday. The complaint is that that service denied the applicant sufficient time to prepare for the hearing. 6. The second issue raised is about the evidence tendered at the review proceedings before the respondent. It is averred that the *ex parte* applicant had raised the issue that no evidence had been tendered by the interested parties, to demonstrate compliance with the requirement of indicating the tender price in the tender form. However, the respondent and the interested parties stated that the said documents were confidential, and could not be disclosed. The said documents were not availed at the review process, for scrutiny by the *ex parte* applicant, and it avers that it was denied an opportunity to verify or challenge the alleged compliance by the 1st interested party. It is asserted that the *ex parte* applicant had indicated the price in its documents, and the same was ascertainable. It is also submitted that even if there was an omission, the same was a minor non-material clerical error which ought not have affected the substance of the bid. 7. The third issue is that the *ex parte* applicant was not afforded an opportunity to clarify its bid or to negotiate it with the 2nd and 3rd interested parties, yet that opportunity was extended to the 1st interested party. 8. The fourth issue is that the respondent upheld the disqualification, and okayed the procurement to proceed, yet it did not challenge the failure by the 2nd and 3rd interested parties to produce evidence to demonstrate compliance by the 1st interested party, and the assertion by the 2nd and 3rd interested parties that certain documents were confidential and not subject to disclosure. It is argued that the respondent did not determine whether the tender price by the *ex parte* applicant was ascertainable from the bid documents as a whole. It is submitted that the decision was arrived at in disregard of material evidence. 9. Several documents are exhibited in the applications, in support of the quest. These are the invitation to tender document; a page from the bid placed by the *ex parte* applicant; notification of the intention to award; the request for review; email communication forwarding the application to the respondent; a hearing notice, for 9th April 2026; and the decision of the respondent, dated 15th April 2026. 10. The respondents were served with the Motion, and have filed responses. 11. The respondent has filed an affidavit, sworn by Mr. Philemon Kiprop, its secretary. It is argued that the application is an appeal disguised as a judicial review cause. It is submitted that the decision of the respondent was properly founded, for it was made upon consideration of the material presented by the parties, and the applicable laws. 12. The 1st interested party has filed an affidavit, sworn by its Chief Finance Officer, Mr. James Wachira Mundia, on 14th May 2026. It is averred that the judicial review proceedings are limited in scope, for they only focus on the legality, rationality and procedural propriety of an administrative decision-making process, and not the merits or correctness of the decision. It is argued that the application is an appeal disguised as judicial review proceedings, as it seeks to have the court reconsider the correctness of the findings of the respondent on responsiveness, to evaluate the substance and content of the bid documents, to determine whether the defects identified by the respondent constituted a minor informality and to substitute the decision of the respondent with its own. 13. It is argued that although a court may, in judicial review proceedings, engage in merit review, that can only be in limited cases, where the application is anchored on the Constitution and the Bill of Rights, and the court is approached under Article 23 of the Constitution. It is averred that the instant proceedings are brought under sections 8 and 9 of the Law Reform Act, Cap 26, Laws of Kenya, and Order 53 of the Civil Procedure Rules, hence a substantive re-evaluation of the procurement dispute ought not be undertaken. 14. The response by the Attorney General, for the 2nd and 3rd respondents, is in the form of a notice of preliminary objection, dated 11th May 2026. It raises 1 issue or ground, that the challenge to the decision of the respondent was filed outside the statutory timelines in section 175(1) of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya. 15. The application was canvassed by way of written submissions, filed by both sides. I have read through the said written submissions, and noted the respective arguments made in them. 16. The submissions by the respondent centre on the criteria for review of administrative action, based on the jurisdiction conferred under sections 8 and 9 of the Law Reform Act, which limits consideration to illegality, impropriety of procedure and irrationality, as summarised in *Re Bivac International SA* *(Bureau Veritas)* [2005] 2 EA 43 and *Pastoli vs. Kabale District Local Government Council & Others* [2008] EA 300. Proof of breach of any of those is critical, it is argued, based on *Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited* [2008] eKLR and *Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary, Ministry of National Metropolitan Development & another* [2014] eKLR. 17. On *certiorari*, *Republic vs. Commissioner of Custom Services ex parte Africa K-Link International Limited* [2012] eKLR and *Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others* [2012] eKLR are cited, for the point that *certiorari* seeks to prevent abuse of power or acting outside jurisdiction. On prohibition, *Mureithi & 2 others (For Mbari Ya Murathimi Clan) vs. Attorney General Nairobi HCMCA No. 158 of 2005* and *Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others* [1997] eKLR are cited, to submit about the inferior tribunal being forbidden from continuing the proceedings in excess of jurisdiction or contravention of the law, and that the order does not issue to quash a decision, but to prevent the making of the decision. 18. The 1st interested party submits that judicial review only seeks to evaluate whether the process of reaching the decision is lawful, procedurally fair and reasonable, and it is not about substituting the decision of the tribunal with that of the court, as was stated in *Republic vs. Public Procurement Administrative Review Board & another Ex parte Gibb Africa Limited* [2012] eKLR. It is argued that, although there could be some limited room for review, in judicial review, that can only be in line with the decision in *Dande & 3 others vs. Inspector General, National Police Service & 5 others* [2023] KESC 40 (KLR), that such can only apply to judicial review orders under the Constitution, and not in the Order 53 causes. The final summation is that the cause herein does not seek interrogation of the legality of the decision-making process, but rather the reconsideration of the correctness of the findings of the respondent on the various issues that it addressed. 19. The 2nd and 3rd interested parties argue on the issue raised in their preliminary objection, the competence of these judicial review proceedings. It is submitted, based on *Republic vs. Communications Commission of Kenya Ex parte East Africa Television Network Limited* [2001] KECA 353 (KLR) and *Republic vs. Commissioner for Cooperative Development & another Ex parte Gusii Farmers* [2004] KEHC 2685 (KLR), that judicial review proceedings do not commence upon the filing of the application for leave, but that of the filing of the motion, upon grant of leave. Based on that, when read with section 175(1) of the Public Procurement and Asset Disposal Act, then the time, when judicial review proceedings are commenced, should be reckoned from when the substantive Motion is filed. It is submitted that the timelines under Order 53 rule 3 of the Civil Procedure Rules cannot override section 175(1) of the Public Procurement and Asset Disposal Act, in view of section 5 of the same Act. *Tic Quality Control vs. Public Procurement Administrative Review Board & 3 others* Nairobi CA No. E637 of 2025 is cited in support. 20. Only 2 principal issues arise for consideration, and that is whether these proceedings are competent and whether the decision of the respondent is reviewable on the parameters proposed by the *ex parte* applicant. 21. The first issue arises from the preliminary objection. The argument is that these proceedings were not initiated within the timelines given under section 175(1) of the Public Procurement and Asset Disposal Act. Section 175 of the Public Procurement and Asset Disposal Act provides for judicial review of the decisions of the respondent, by the High Court. The timeline given, for initiating the judicial review proceedings, is 14 days, from the date of the decision of the respondent. That provision states as follows, in the portion relevant to these proceedings: *“175. Right to judicial review to procurement* *(1) A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.”* 1. The decision of the respondent was rendered on 15th April 2026. The *ex parte* applicant first approached this court, for leave to apply for judicial review on 28th April 2026. Leave was granted on 29th April 2026. The substantive Motion was filed on 30th April 2026. Had the 14 days expired on 29th and 30th April 2026, when the application for leave and the substantive motion were filed? 2. Computation of time, for purposes of a written law, is governed by Article 259(5)(a) of the Constitution and section 57 of the Interpretation and General Provisions Act, Cap. 2, Laws of Kenya. The key principles are that the day on which the event occurs is excluded from the count, so that the timeline begins the following day; the last day of the event is included in the count; and weekends and public holidays are included in the count, except for a period of 6 days or less. For procurements, the timelines are strict, inclusive of that under section 175(1) of the Public Procurement and Asset Disposal Act. 3. Going by the above, the decision of the respondent having been made on 15th April 2026, the 14-day period to initiate judicial review proceedings began to run from 16th April 2026, and expired on 29th April 2026. The judicial review proceedings ought to have been filed within that period. The last day for filing was 29th April 2026. The application for leave was filed on 28th April 2026, a day before the expiration of the 14 days, and leave was granted on the last day, 29th April 2026. The substantive motion was then filed on 30th April 2026, and that was a day after the 14 days had lapsed. 4. The issue then is whether the proceedings were commenced within the 14-day timeline, or outside of it. The answer to that would depend on when judicial review proceedings are effectively commenced, whether at the filing of the application for leave, or that of the substantive motion, after the grant of leave. The filing of the application for leave effectively commences the judicial review proceedings, for the cause is not commenced or originated by way of the substantive motion, but rather by way of the statutory statement, which is the pleading for the purposes of the proceedings. Both the *ex parte* chamber summons and the motion are interlocutory, filed within the judicial review cause. 5. There is a current practice, of filing the application for leave in one cause and the motion in a separate cause. That practice has the leave sought in a miscellaneous judicial review cause, and the motion filed in a separate substantive judicial review cause. That practice is spurious, and does not accord with what is envisaged under Order 53 of the Civil Procedure Rules and the law and practice in England, upon which judicial review proceedings in Kenya are still anchored, so far as procedure is concerned. That erroneous Kenyan practice could cause confusion, by creating the impression that the filing of the application for leave does not commence the judicial proceedings, and that, in fact, it is the filing of the substantive motion that initiates the proceedings. There should be no 2 causes, but just one, for the 2 stages of judicial review ought not be separated, by the opening of 2 separate cause files for the 1 process. The application for leave to commence judicial review proceedings is not comparable to the application to file suit out of time, where a substantive suit is filed, in separate proceedings, upon grant of leave to file suit out of time. 6. See generally, *Mohamed Ahmed vs. R* [1957] EA 523 and *Farmers Bus Service and others vs. The Transport Licensing Review Appeal Tribunal* [1959] EA 779. 7. The 2nd and 3rd respondents have cited *Republic vs. Communications Commission of Kenya Ex-Parte East Africa Televisions Network Limited* [2001] eKLR [2001] KECA 353 (KLR) and *Republic vs. Commissioner of Co-operative Development & another Ex-Parte Gusii Farmers* [2004] eKLR [2004] KEHC 2685 (KLR), in support of that contention. I have read and re-read these 2 decisions, and I have been unable to find their relevance to the issue at hand, for they do not address the question as to whether judicial review proceedings are commenced at the leave stage, or after grant of leave and upon the filing of the substantive motion. 8. The position herein, then, is that the judicial review proceedings were initiated within the 14-day period, when the statutory statement was filed, on 28th April 2026, simultaneously with the *ex parte* summons seeking its prosecution. The proceedings are, accordingly, competent. 9. Let me now advert to the substance of the application, on whether there is any merit to it, or whether it makes a case for grant of the orders sought. 10. I will start with the easier part, the prayer for prohibition. It is sought against the interested parties. With respect, interested parties are not principal parties in any litigation. They are peripheral or lesser parties, for the main parties would be the initiator of the proceedings and the parties against whom the orders are sought. Interested parties are brought into a suit merely because they are likely to be affected by the final orders. See *Farmers Bus Service and others vs. The Transport Licensing Review Appeal Tribunal* [1959] EA 779. It affords them a chance to be party to the proceedings, so that they are not caught by surprise, when final orders are made, which ultimately affect their rights. 11. They are interested parties in that sense, for they are not principal parties against whom orders can be sought, or against whom compliance with the orders would be required. See *Mohamed Ahmed vs. R* [1957] EA 523. Court orders are targeted at principal parties, such as respondents and defendants. No order should be directed at an interested party, and if it is desired that some order be obtained against an interested party, then that party ought to be made a principal in the proceedings, by being sued as either defendant or respondent, depending on the nature of the proceedings. 12. In view of the above, the judicial review order that is sought against the interested parties herein cannot lie. If the *ex parte* applicant intended to obtain a judicial review order against them, it should have made them principal parties to the cause, by designating them as respondents. More crucially, the review that is being sought, under section 175 of the Public Procurement and Asset Disposal Act, is of a decision of the respondent and not the interested parties. Judicial review proceedings anchored on that provision would not give room for challenge of anything else, other than the decision of the respondent. 13. As framed, the prayer for prohibition is not seeking the judicial review order envisaged under Order 53 and sections 8 and 9 of the Law Reform Act. Prohibition bars the decision-maker from making the decision, where one has not already been made. It does not operate as a stay order or an injunction to restrain implementation of the impugned decision. The judicial review order, which deals with a decision that has already been made, is that of *certiorari*, to quash that decision. The prohibition order does not issue to prevent the implementation of the decision, for once the decision is quashed, by way of *certiorari*, there would be nothing to prohibit or bar. Prohibition cannot be targeted at persons other than those making the impugned decision. A distinction ought to be made, to avoid confusion, between a prohibitory order, made in ordinary civil cases, particularly in land matters, and the prohibition order made in judicial review causes. 14. On the *certiorari*, there are only 3 considerations, being illegality, irrationality and unreasonableness, and procedural impropriety. See *Pastoli vs. Kabale District Local Government Council & Others* [2008] EA 300. Legitimate expectation does not come into consideration, under the Order 53 applications. That can only arise in proceedings mounted under the Fair Administrative Action Act, Cap 7L, Laws of Kenya. 15. Was the decision to disqualify the *ex parte* applicant illegal or *ultra vires*? I have not seen any material pointing to illegality. There has been no demonstration that the respondent exercised powers or a mandate that it did not have, or exceeded its function, in the manner it disqualified the *ex parte* applicant and awarded the tender to the 1st interested party. 16. On irrationality and unreasonableness, I note that the principal complaint is that its disqualification was based on its failure to disclose the price for the service it was proposing to offer. It asserts that it did quote a price, and has exhibited a page from its bid as proof. I would be venturing into substance, instead of process, if I were to evaluate the documentation that was submitted by the parties. The respondent had access to that material, and must have evaluated the same, to assess whether or not the same met the expectation of the procuring entity. 17. At the risk of being accused of venturing into merit review, let me state that I have considered that document, filed by the *ex parte* applicant, and noted entries. They relate to pricing for “publication with online platform.” I see the figures 475,020 and 870,000. There is no indication of what these figures mean. Do they represent copies of the publication projected to be distributed, or monetary value of the service the *ex parte* applicant was proposing to offer? If they represent a monetary value, the question them would be, in which currency? There is vagueness around these figures, and they, certainly, would have been of no use to the procuring entity, in terms of assessing the bid. 18. The *ex parte* applicant argues that if there were errors or mistakes, the same were clerical in nature, and did not warrant the declaration that its bid was unresponsive. It has also argued that it ought to have been invited for clarifications, to explain the bid. With respect, this was a competitive process. The lapses exhibited in that document were adequate to disqualify the *ex parte* applicant. They were not clerical errors or mistakes of the kind that could be corrected without prejudicing the other bidders. I am not persuaded that the decision to disqualify the bid was unreasonable or irrational. 19. On whether the bid by the 1st interested party should have been accepted, I have not seen material which would point to the bid by the 1st interested party not having qualified. The bid by the 1st interested party has not placed before me, and there were complaints that the *ex parte* applicant was not allowed access to that material. The *ex parte* applicant has not cited any statutory provision or case law that would allow it to have access to that material. 20. Section 67(1) of the Public Procurement and Asset Disposal Act forbids disclosure of certain classes of information, including “*the contents of tenders, proposals or quotations*.” Section 67(3) provides exceptions, the circumstances under which disclosures may be permitted, which include disclosures for the purposes of proceedings before a court of law or the respondent. Section 67(4) envisages disclosure to an applicant seeking review, but limited to the summary provided for under section 68(2)(d)(iii) of the Public Procurement and Asset Disposal Act. 21. Although the *ex parte* applicant does complaint about that material not being made available to it, it has not exhibited any proof that it sought that information, and the summary, envisaged under section 68(2)(d)(iii), was not availed to it, by the 2nd and 3rd interested parties. Neither is there proof that it sought and obtained a court order, for supply of that information, which was an option available to it. I have noted, from the ruling of the respondent, that some of the material was placed before it, and it evaluated the same, for the purpose of rendering its decision. 22. The respondent has been accused of not pushing the 2nd and 3rd interested parties to provide evidence that the bid by the 1st interested party was responsive, warranting award of the tender. The proceedings before the respondent were initiated by the *ex parte* applicant. That was its case. The burden was upon it, to establish that which it was alleging. I see nothing in the relevant law, and none has been pointed out to me, which placed the burden of proof on the 2nd and 3rd interested parties, to establish a specific fact or other, before the *ex parte* applicant had proven what it was alleging. 23. There is the complaint about the respondent inviting the 1st interested party for negotiations. Section 81(1) of the Public Procurement and Asset Disposal Act permits procuring entities to seek clarifications from a tenderer, to assist in the evaluation and comparison of tenders. However, under section 81(2) of the Public Procurement and Asset Disposal Act, a clarification should not change the terms of the tender. Section 82 provides against correction, revision, adjustment or amendment of tenders, by any person or entity, after the opening of the bids. 24. Section 128 of the Public Procurement and Asset Disposal Act allows for negotiations with the bidder who has submitted a successful proposal, and the procuring entity is permitted to request and permit changes, which, under section 129(1), may lead to a different price. If negotiations with that bidder are not fruitful, the procuring entity is permitted to approach the next person, who submitted a proposal that would have been successful, had the successful proposal not have been submitted. 25. For avoidance of doubt, section 128 states as follows: “*128. Negotiations with successful request for proposal tenderer* *(1) The accounting officer may negotiate with the person who submitted the successful proposal and may request and permit changes, subject to section 129(1).* *(2) If the negotiations with the person who submitted the successful proposal do not result in a contract, the accounting officer may negotiate with the second person who submitted the proposal that would have been successful had the successful proposal not been submitted.* *(3) Despite subsection (1) and (2) of this section, an offer made to any other person shall not have any price advantages over the earlier one.”* 1. From the above, it would be clear that the law does provide that a procuring entity may enter into negotiations with bidders. However, the negotiations can only be with bidders whose bids are successful. According to the respondent and the 2nd and 3rd interested parties, the bid that was evaluated to have been responsive was that of the 1st interested party. That by the *ex parte* applicant was assessed non-responsive, at the preliminary stage. Going by the provisions of section 128, the 2nd and 3rd interested parties could enter into negotiations, in the framework of that provision, with the 1st interested party, but not with the *ex parte* applicant. 2. Even if the bid by the *ex parte* applicant had not been dismissed at the preliminaries, the 2nd and 3rd interested parties could not have entered into negotiations with it at the same time with the 1st interested party. The negotiations, under section 128, are meant to be successive, in the sense that the procuring entity can only engage with one bidder at a time. It cannot engage both at the same time. It can only revert to the second bidder where the negotiations with the first bidder do not result in a contract. 3. With respect to the negotiations, it has not been demonstrated that the respondent improperly considered the matter of the negotiations, given that they are provided for in the law. 4. There is also the issue of service of the hearing notice, on the *ex parte* applicant, over the Easter weekend, which, according to the *ex parte* applicant, did not give it enough time to adequately prepare for the hearing, suggesting that it was prejudiced. There are 2 things there. 5. One, proceedings founded on the Public Procurement and Asset Disposal Act are subject to very tight timelines. The respondent has only 21 days, from the date of filing of the request for review, by virtue of section 171 of the Public Procurement and Asset Disposal Act, to hear and determine the review. Weekends and holidays do not count, in the computation of that period. The respondent did not, therefore, act improperly, or was unprocedural, in serving hearing notices over the Easter weekend. Two, the request for review was initiated by the *ex parte* applicant. It was its case. It had participated in the bidding process, and had prepared all documentation, for the request for review, lodged with the respondent. All the relevant material, for prosecution of the request for review, was at its fingertips. There was little for it to prepare. No prejudice could be suffered, in the circumstances. 6. There is an allegation, by the *ex parte* applicant, that there was information that all the bids were unsuccessful, for omitting to quote prices, yet, despite that, the respondent proceeded to publish an intention to award the tender to the 1st interested party. That suggested that a non-responsive bid was processed, nonetheless. The *ex parte* applicant has not disclosed the source of that information, neither has it presented any documentary material to support it. It has not demonstrated, in any way, how that rumour, for that is what it is, can provide basis for review of the decision of the respondent. 7. In the end, I have come to the conclusion that the application, dated 24th November 2025, is not merited, and I hereby disallow and dismiss it. Orders accordingly. **DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 5TH DAY OF JUNE 2026.** **W MUSYOKA** **JUDGE** **Mr. Brian, Court Assistant.** **Advocates** **Mr. Ngure, instructed by Gordon Ogola & Associates, Advocates for the applicant.** **Mr. Wanjohi, instructed by Attorney General, for the respondent and the 2nd and 3rd interested parties.** **Mr. Nura, instructed by Garane & Somane, Advocates for the 1st interested party.**