[2022] KEHC 11549 (KLR)

Republic v Public Procurement Administrative Review Board & another; Accounting Officer, Kenya Pipeline Company Limited (Exparte) (Judicial Review Application E040 of 2022) [2022] KEHC 11549 (KLR) (Judicial Review) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11549 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E040 of 2022

AK Ndung'u, J

May 12, 2022

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

1st Respondent

Sintmond Group Limited

2nd Respondent

and

Accounting Officer, Kenya Pipeline Company Limited

Exparte

Judgment

1. A brief background of this matter is that on 12th October,2021, the Procuring Entity through the Ex parte Applicant advertised Tender Reference Number KPC/PU/0T-033(CORR)/NBI/21-22; Tender for in-line inspection of 8-inch Nairobi-Eldoret (Line 2) and 6-Inch Sinendet-Kisumu (Line 3) multi product pipelines, (“subject tender”) inviting sealed tenders from eligible candidates.

2. That the tender was floated through the fix-writ: Ex parte Applicant’s e-procurement platform, Supply Relationship Management System (SRM) in pursuance to section 64 of the Public Procurement and Asset Disposal Act,2015 and sections 49-63 of the-Public Procurement and Asset Disposal Regulations, 2020. The subject tender was-an open, two envelope tender. The tenders were opened on 7th December,2021 wherein nine bidders submitted their bids, The Tender Evaluation Committee of the Ex-parte Applicant did not complete evaluation of bids within the 30 days prescribed under section 80(6) of the PPADA 2015.

3. The Ex parte Applicant in a letter dated 15th February,2022 nullified the tender due to operation of law in accordance with section 63(1)(a)(i) of the Act as the evaluation period as prescribed under section 80(6) of the Act had lapsed. The Ex parte Applicant went ahead to re-advertise the tender on 22nd February,2022.

4. The 2nd Respondent aggrieved by this decision lodged a Request for Review dated 25th February 2022; PPARB Application No.18 of 2022 Sintmond Group Limited vs. The Accounting Officer, Kenya Pipeline Company Limited.

5. The 1st Respondent in its decision dated 18th March,2022 granted the following Orders;(a)The re—advertisement of Kenya Pipeline Limited’s Tender for In-Line Inspection of 8-Inch 8 6-Inch Nairobi-Eldoret (Line-2) and 6-Inch Sinendet-Kisumu (Line—3) Multi—Product Pipelines by the Respondent be and is hereby cancelled and set aside.(b)The decision to terminate procurement proceedings of Tender No: KPC/PLI/OT-033/CORR/NBI/21-22 for In-Line Inspection of 8-Inch (Cd 6-Inch Nairobi-Eldoret (Line-2) and 6—Inch Sinendet—Kisumu (Line-3) Multi Product Pipelines by the Respondent be and is hereby nullified and set aside.(c)The letters of nullification of the procurement proceedings of Tender No: KPC/PU/OT—033/CORR/NBI/21-22 for In-Line Inspection of 8-Inch (Cd 6-Inch Nairobi-Eldoret (Line-2) and 6—Inch Sinendet—Kisumu (Line-3) Multi Product Pipelines by the Respondent dated 15th February 2022 addressed to all tenderers be and are hereby cancelled and set aside.(d)The Evaluation Committee’s Re-evaluation Report dated 2nd February 2022, the Procuring Entity’s General Manager Supply Chain 2“” Opinion dated 3"" February 2022 and the Respondent’s approval to terminate the procurement proceedings to the subject tender of 3rd February 2022 in relation to Tender No: KPC/PU/OT—OBB/CORR/NBl/2l—22 for ln-Line Inspection of 8-lnch & 6-lnch Nairobi-Eldoret (Line-2) and 6—lnch Sinendet—Kisumu (Line-3) Multi Product Pipelines be and are hereby nullified and set aside.(e)The Respondent is hereby ordered to direct the Evaluation Committee to re-admit the Applicant’s tender to the evaluation process and proceed to open and evaluate the Applicant’s financial tender forthwith.(f)Further to the order above, the Respondent is ordered to ensure the procurement proceedings of Tender No: KPC/PU/OT-OBB/CORR/NBl/21-22 for ln-Line Inspection of 8—lnch 8* 6-lnch Nairobi-Eldoret (Line-2) and 6-lnch Sinendet—Kisumu (Line-3) Multi Product Pipelines proceeds to its logical conclusion including the making of award to the successful tenderer within fourteen (14) days from the date of this decision taking into consideration the Board’s findings.(g)Given that the procurement proceedings are not complete; each party shall bear its own costs in this Request for Review.

6. The Ex Parte Applicant aggrieved by the above decision filed a Chamber Summons application dated 31st March, 2022 upon which leave was granted by the Court on 3rd April,2022 and a substantive motion filed before this Court on 6th April,2022. This Motion is supported by a Supporting Affidavit sworn by Laban Kosgey and it seeks the following orders;i.An Order of Certiorari to remove to this Honourable Court and quash the decision of the 1st Respondent in PPARB Application No.18 of 2022(Sintmond Group vs. The Accounting Officer, Kenya Pipeline Company Limited) delivered on the 18th Day of March 2022. ii.Cost of, and incidental to this Application be in the cause.

7. It is the Ex parte Applicant’s case that upon the termination of the tender in its e-procurement platform (SRM) the 2nd Respondent’s Financial bid became inaccessible and that this is consistent with the tender document whereby a bidder’s unopened financial bid remains confidential until the opening of the financial bids for evaluation. If the bids are not opened and no evaluation takes place the financial bids are returned to the bidders unopened.

8. Further, it is said that the terminated tender is no longer modifiable to allow for opening of the financial bids, financial evaluation, upload of the evaluation report, preparation of the professional opinion, approval of award and creation of a purchase order.

9. The 1st Respondent is faulted for making errors in law by finding 14 out of 30 of days provided for evaluation under section 80(6) had been spent, that the 30 days are only counted during the actual evaluation and any breaks between the start of the evaluation and submission of the evaluation report are not counted, that the committee’s evaluation report dated 2nd February,2022, professional opinion from the Supply Chain General Manager and the Ex parte Applicant’s approval to terminate the proceedings are null and void. Finally, that the ground for termination at any time prior to award by operation of law as is provided under section 63(1)(a) was not available to the Ex parte Applicant.

10. The Ex parte Applicant urges that contrary to the 1st and 2nd Respondents allegations, this Honourable Court has jurisdiction to hear the matter before it pursuant to section 175(1) of the Act. The case of Simba Pharmaceuticals Limited & Another vs. PPARB & Another [2017] eKLR is cited to further buttress this argument.

11. It is the Ex parte Applicant’s case that orders (e) and (f) of the 1st Respondent’s decision dated 18th March,2022 are unenforceable and that equity would do nothing in vain thus the 1st Respondent cannot make an order which cannot be enforced and is impossible for the Ex parte Applicant to comply with. The case of Eric V.J. Makokha & 4 Others v Lawrence Sagini & 2 Others Civil Application No.20 of 1994 (12/94 UR) is cited in this regard.

12. The Ex parte Applicant contends that contrary to the Board’s decision in PPARB Application No.18 of 2022 Sintmond Group Limited vs. The Accounting Officer, Kenya Pipeline Company Limited the evaluation period should be continuous notwithstanding the breaks taken by the procuring entity in obtaining approval to proceed to the financial evaluation as was held in PPARB NO.59 of 2019; Weldcon Limited v Kenya Pipeline Company Limited & Another.

13. On the definition of the remedy of certiorari and circumstances when it can issue the cases of Pastoli vs. Kabale District Local Government Council & Others [2008]2 EA 300 and Simba Pharmaceuticals Limited & another v PPARB & another [2017] eKLR are cited.

14. The 1st and 2nd Respondent’s filed Replying Affidavits dated 12th April,2022 and 11th April,2022 respectively. They also filed written submissions dated 25th April,2022 and 28th April,2022 respectively.

15. The 1st Respondent contends that all parties as well as tenderers in the subject tender were notified of the existence of the Request for Review. Further, the parties were afforded an opportunity to file and urge their respective positions. It the 1st Respondent’s case that in arriving at its decision it was alive to all issues raised by parties and well informed of the provisions of the law applicable and the facts and issues raised including provisions of the Constitution,2010, Public Procurement and Asset Disposal Act and all other applicable legislation.

16. It is also urged that it acted well within its jurisdiction and observed the rules of natural justice while acting lawfully, fairly and reasonably in exercise of its statutory mandate under section 28 as read together with section 173 of the Act. The 1st Respondent contends that there were no errors on the face of the record as alleged by the Ex parte Applicant. The application before this court is also said to be an appeal disguised as a judicial review application.

17. On the issuance of judicial review orders, purpose and the criteria to be used in issuing the same, the 1st Respondent cites the cases ofRe Bivac International SA (Bureau Veritas)(2005)2 EA 43, Pastoli vs. Kabale District Local Government Council & Others [2008]2 EA 300, Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR, Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & Another [2014] eKLR andKenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] eKLR.

18. The 1st Respondent contends that a party must demonstrate that there was a mistake committed that goes to the jurisdiction of the tribunal and not just misinterpretation of the law. Further that judicial review is only concerned with the fairness of the process under which the impugned decision or action was reached and once a judicial review court gives a clean bill of health to the process, it must down its tools without considering the merits of the decision. The cases of Municipal Council of Mombasa v Republic & Another [2002] eKLR and Republic v. Kenya Power & Lighting Company Limited & Another [2013] eKLR are cited in this regard. It is contended that judicial review orders of certiorari, mandamus and prohibition are public law remedies and the court has the ultimate discretion to either grant or not to grant the said remedies to the successful applicant.

19. The 2nd Respondent’s case is that the challenges the Procuring Entity is facing are certainly not grounds for judicial review. The Ex parte Applicant is also accused of failing to inform the 1st Respondent that some of the prayers sought by the 2nd Respondent were impossible or impractical to implement. In addition, it is contended that the challenges the Procuring Entity is experiencing are not grounds for Judicial Review.

20. It is the 2nd Respondent’s case that the procurement proceedings ought to have been guided by sections 53,63,167 and 168 of the Act and Regulation 62 and that pursuant to section 53(1) the Ex parte Applicant had an obligation to ensure that the tender proceedings were subject to the rules and principles this meaning that there is no legal basis for a procuring entity to adopt a system that cannot be subjected to the rules and principles under the Act.

21. The 2nd Respondent urges that if the Ex parte Applicant had applied the provisions of the above sections he would not have conducted the procurement proceedings under the SRM system which interferes with the bidders right to seek administrative review and the option of implementing lawful orders of the 1st Respondent.

22. The Ex parte Applicant is said to have, despite receiving a Notification of Appeal and letter dated 25th February,2022, proceeded with termination of the subject tender in the SRM system. Further that upon filing of the Request for Review the procurement proceedings were suspended in line with section 168 of the Act.

23. It is argued that although the Ex parte Applicant was already aware that the SRM system had marked the transaction as complete it failed to disclose this information to the 1st Respondent and therefore the same cannot be brought before this Court as this would be asking the Court to sit as a trial court as the same was not pleaded before the Board.

24. It is the 2nd Respondent’s case that according to the 1st Respondent the Evaluation Committee completed technical evaluation of tenders on 21st December,2021 upon which it recommended the opening of the 2nd Respondent’s financial bid for financial evaluation. The 1st Professional Opinion report by the Procuring Entity’s General Manager Supply Chain dated 3rd January,2022 also gave a similar recommendation. The Ex parte Applicant failed to implement the said position but instead directed that a re-evaluation of the technical tenders be done without giving any reasons in writing as provided under Regulation 79(2).

25. Further, it is stated that the 1st Respondent observed that the period within which the evaluation committee was required to start evaluation of the bids commenced on 8th December,2021. The committee, was said to have taken 14 days to evaluate the technical bids. The evaluation of the tenders at the Preliminary Examination stage and Technical Evaluation stage was concluded on 21st December, 2021.

26. In addition, that the rejection of the reopening of the 2nd Respondent’s financial tender,1st Professional Opinion dated 3rd January,2022, re-evaluation report dated 2nd February 2022, the 2nd professional Opinion dated 3rd February,2022 and the Ex parte Applicant’s approval to terminate the procurement proceedings of the subject tender of 3rd February,2022 do not form part of the evaluation.

27. The 2nd Respondent contends that according to this finding only a maximum of 14 days out of 30 days had been utilized and hence the 1st Respondent’s reason for holding that the Ex parte Applicant’s allegations that the subject procurement had been overtaken by events was not available to the Ex parte Applicant.

28. The 2nd Respondent while submitting on the grounds to be proven for the grant of judicial review orders cited the cases of Council of Civil Unions vs. Minister for Civil Service [1985] AC 374, Republic v. Registrar of Companies & Another Ex parte Ukamba Agricultural Institute & 3 Others [2015] eKLR and Republic v Board of Management, Mbakaini Boys High School & another Ex parte AMK & 4 others [2022] eKLR. It is contended that the Ex parte Applicant has failed to demonstrate any of the said grounds. On the function, scope and nature of judicial review, the case of Republic vs. National Employment Authority & 3 Others Ex parte Middle East Consultancy Services Ltd [2018] eKLR is cited.

29. It is the 2nd Respondent’s submission that a party cannot raise new issues in Judicial Review and to support this argument the case of Republic vs. Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & Others ex parte Tom Mbaluto[2018] eKLR is cited. The alleged technical difficulties according the 2nd Respondent is not reason enough for the Ex parte Applicant to fail to comply with the lawful orders of the 1st Respondent.

30. The 2nd Respondent urges that all issues raised in the application before this court were addressed before the 1st Respondent and instead of pointing how the 1st Respondent’s decision was tainted with illegality; irrationality or procedural impropriety the Ex parte Applicant is inviting the court to look into an issue not pleaded before the 1st Respondent. To support this argument, the case of Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte Rongo University [2018] eKLR is cited.

31. The Ex parte Applicant is argued to have been in breach of the principle of transparency as envisaged under Article 227(1) of the Constitution as he failed to inform the 1st Respondent that the RFX number was no longer modifiable and an order of proceeding with evaluation of the Tender could not implemented. The case of Republic vs. Public Procurement Administrative Review Board & Another Ex parte University of Eldoret [2017] eKLR is cited in this regard.

32. The 2nd Respondent also contends that no evidence has been provided to show that the SRM system cannot be modified or reversed or that the 2nd Respondent’s bid is inaccessible or no longer available for evaluation. Further that pursuant to section 68 of the Act, the Ex parte Applicant must have a back up to the SRM system and records dating back six years can be produced when need be. The 2nd Respondent also contends that it is not clear if the proposal was deleted from the system or not and if deleted then the matter should have been raised before the 1st Respondent so that parties can canvass on it.

33. It is the 2nd Respondent’s case that court orders are bound to be respected and in support of this argument the cases of Republic v Principal Secretary Ministry of Defence Ex parte George Kariuki Waithaka [2019] eKLR, Root Capital Incorporated vs. Tekangu Farmers’ Co-operative Society Limited & Another [2016] eKLR, Trans Mara Sugar Co Ltd & another vs. Ben Kangwaya Ayiemba & Another [2020] eKLR are cited. The 2nd Respondent contends that it will face profound injustice and prejudice if the tender is re-advertised and in addition there will also be unwarranted loss, damage and waste of public resources. In support of this argument the case of Republic v Public Procurement Administrative Review Board & Another Ex parte University of Eldoret [2008] eKLR is cited.

34. On whether the 1st Respondent erred in law in arriving at its decision, reliance is placed on the case of Republic vs. Public Procurement Administrative Board & 2 Others Ex parte Pelt Security Services Limited [2018] eKLR. The 2nd Respondent also submitted that the Ex parte Applicant ought to have provided substantive reasons and evidence for the termination and to support this argument the case of Republic v Public Procurement Administrative Review Board; Leeds Equipments & Systems Limited (interested party); Ex parte Kenya Veterinary Vaccines Production Institute [2018] eKLR is cited.

35. It is the 2nd Respondent’s argument that tribunals are not courts in literal sense and therefore they should not be held to be subject to the rule of stare decisis. Further that administrative decision-makers have significant flexibility in responding to changes and they may attune their decisions, orders and directives to better suit the changed circumstances. The case of Kenya Limited v Energy Regulatory Commission & 2 others [2020] eKLR is cited in this regard.

36. I have had occasion to consider the argument advance by the parties and relevant case law. For determination is whether the applicant has established a case for the grant of the judicial review orders sought.

37. It is trite law that an application under judicial review is not an appeal against the decision of the adjudicating body or tribunal. The court’s role is to supervise the process before the decision making body to establish that the said decision is not tainted with illegality, irrationality or procedural impropriety. The Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 the Court of Appeal expressed itself as follows:“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision…It is the duty of the decision maker to comply with the law in coming to its decision, and common sense and fairness demands that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorised by the statute creating it and in the manner authorised by statute.”

38. In the Uganda case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300. It was held while citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 that;“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

39. Even where merit review of the decision making body is permissible under judicial review, it is a restricted power and the court cannot usurp the role of the decision making body neither substitute its decision for that of the body. On the boundaries of merit review, Nyamweya J as she then was in Republic v Public Procurement Administrative Review Board & 3 others Ex parte Techno Relief Services Limited [2021] eKLR stated;“Judicial review has now also been entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action, and section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision. In addition, it was emphasized by the Court of Appeal inSuchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, [2016] KLR that Article 47 of the Constitution as read with the grounds for review provided by section 7 of the Fair Administrative Action Act, reveals an implicit shift of judicial review to include aspects of merit review of administrative action, even though the reviewing court has no mandate to substitute its own decision for that of the administrator.23. The standards of merit review set out in section 7 (2) of the Act are as follows:(2)A court or tribunal under subsection (1) may review an administrative action or decision, if-a.the person who made the decision-(i)was not authorized to do so by the empowering provision;(ii)acted in excess of jurisdiction or power conferred under any written law;(iii)acted pursuant to delegated power in contravention of any law prohibiting such delegation;(iv)was biased or may reasonably be suspected of bias; or(v)denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case;b.a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;c.the action or decision was procedurally unfair;d.the action or decision was materially influenced by an error of law;e.the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;f.the administrator failed to take into account relevant considerations;g.the administrator acted on the direction of a person or body not authorised or empowered by any written law to give such directions;h.the administrative action or decision was made in bad faith;i.the administrative action or decision is not rationally connected to-i.the purpose for which it was taken;ii.the purpose of the empowering provision;iii.the information before the administrator; oriv.the reasons given for it by the administrator;j.there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;k.the administrative action or decision is unreasonable;l.the administrative action or decision is not proportionate to the interests or rights affected;m.the administrative action or decision violates the legitimate expectations of the person to whom it relates;n.the administrative action or decision is unfair; oro.the administrative action or decision is taken or made in abuse of power24. It is evident from this provisions that this Court has jurisdiction to review the decisions of subordinate courts and quasi-judicial bodies, of which the 1st Respondent is one. It is also inaccurate and one-dimensional to classify this Court’s review jurisdiction as being limited to the decision making process of an administrative body or subordinate court, as it is evident that the Court can also review the merits of a decision in judicial review. The applicable restraints in the exercise of its judicial review jurisdiction are that the Court must be careful not to usurp and interfere with the matters entrusted to an administrative body or subordinate court to decide in the first instance, as its jurisdiction is supervisory. In addition, the Court cannot substitute its decision or preferred outcome with that of the said bodies or courts, hence the restrictions on the extent of merit review that can be undertaken in judicial review. 25. Coming to the permissible merit review, firstly, as shown by the applicable standards of review in section 7 of the Fair Administrative Action Act, the legality of decision making extends beyond merely the process, and include aspects of reasonableness, proportionality and fairness of the decision. Secondly, the merit review by a judicial review Court may extend to correcting any errors made by a decision making body as to the existence of precedent facts, and in the application and interpretation of the law, in reviewing the legality of the decisions, and if the bodies have acted within their powers. Hence the remedies available to a judicial review Court in this regard of quashing illegal decisions and requiring public bodies to apply the correct law and procedure.’’

40. With the legal exposition hereinabove in mind, I now turn to the gist of the applicant’s challenge to the decision of the Board. In the grounds set out in support of the motion, it is stated that the applicant is unable to access the 2nd respondents financial bid following the termination of the tender in its e-procurement platform (the Supplier Relationship Management (SRM)) for purposes of financial evaluation. It is the applicant’s case that once termination is effected in the SRM system, the terminated tender is no longer modifiable to allow for the remaining steps, that is the opening of the financial bids, financial evaluation, upload of the evaluation report, preparation of the professional opinion, approval of award and creation of a purchase order. It is urged that the Board erred in law by holding that only 14 out of the 30 days for evaluation of tender s required under section 80(6) of the PPADA had been spent in the evaluation of the subject tender. This deduction was reached by the Board by its holding that any breaks between the evaluation of the tenders and the submission of the evaluation report are not counted. The holding by the Board that the ground for termination as envisaged in section 63(1)(a)(i) of the Act was not available to the exparte applicant is also challenged.

41I have had recourse to the decision of the Board. I have specifically perused the summary of the applicant’s case before the Board. The issue whether upon termination of the subject tender the SRM system would not allow access to the financial bid of the 2nd respondent and that once terminated in the SRM system, the terminated tender is no longer modifiable to allow for the remaining steps, that is the opening of the financial bids, financial evaluation, upload of the evaluation report, preparation of the professional opinion, approval of award and creation of a purchase order was never raised by the applicant and was not an issue before the board. Arising from the material before the Board, it came up with the following issues for determination;1. Whether the Replying Affidavit of Maureen Mwenje filed on 7th March, 2022 is fatally defective for not having been taken before a commissioner for oaths and for not being dated contrary to Section 5 of the Oaths and Statutory Declarations Act;2. Whether the Respondent terminated the procurement proceedings of the subject tender in accordance with Section 63 of the Act on account that the subject procurement has been overtaken by operation of law to divest the Board of its jurisdiction by dint of Section 167(4)(b) of the Act;Depending on the determination of the second issue3. Whether the Evaluation Committee appointed by the Respondent failed to conclude the evaluation of proposals in the subject tender within a maximum period of thirty (30) days provided under Section 80(60) of the Act;4. Whether the Respondent could legally re-advertise the subject tender before expiry of 14 days after the date of receipt by the Applicant of the letter of nullification dated 15th March, 2022. 5.What orders should the Board grant in the circumstances.

42. Its thus mind boggling how the grounds above have been raised as grounds upon which this judicial review application can lie when they were not before the Board in the first place. Any evidence of inability to comply with the Boards decision ought to have been raised before the Board. The issue would only find its way to this court if it was raised and was not considered by the Board. Be that as it may, it is curious how the applicant would keep a system that would defeat the applicability of the provisions of the Act and hope to get away with it. Section 173 gives the Board wide powers to correct irregularities in public procurement processes and the law would not countenance any procurement system that would hinder implementation of legally issued directives by the Board. This court, (Mativo J), Republic v Public Procurement Administrative Review Board & Another Ex Parte SGS Kenya Limited [2017] stated;“What must be borne in mind is that public procurement has a constitutional underpinning as clearly stated in Article 227 and disputes arising from procurement processes are concerned with constitutional rights which include the Right to reasonable expectation once a bidder is successful. In addition, the scheme of the act is such that procurement process must strictly conform to the constitutional dictates of transparency, openness, accountability, fairness and generally the rule of law and such rights cannot be narrowly-construed. And what is more, the public body terminating the tender bears the onus of establishing that the termination meets all these constitutional dictates’’.With this in mind, a public procurement should not be defeated by anything including a system that makes it impossible to correct any wrong that may be found to have been occasioned at any stage of the procurement. In view of the above, the grounds revolving around the SRM systems are not useful to the applicant’s cause in these proceedings.

43. Turning to the other grounds relied upon, it is urged that the Board erred in law by holding that only 14 out of the 30 days for evaluation of tenders required under section 80(6) of the PPADA had been spent in the evaluation of the subject tender. The applicant maintains that the Board erred in law by holding that the 30 days envisaged under section 80(6) of the Act are counted only on the actual days the evaluation committee evaluates the tenders and any breaks in between the start of evaluation of the tenders and the submission of the evaluation report are not counted. The holding by the Board that the ground for termination as envisaged in section 63(1)(a)(i) of the Act was not available to the exparte applicant is also challenged.

44. From the extract of the issues for determination isolated by the Board in its decision reproduced above, these two questions find their place in issue no. 2 and 3. These issues were placed before the Board. The Board had jurisdiction to entertain them and it did. In an elaborate exposition and analysis, complete with case law, the Board in 23 pages dealt with these issues and reached a determination. All the issues raised by the parties were considered. I reiterate the sentiments by Nyamweya J in Republic v Public Procurement Administrative Review Board & 3 others Ex parte Techno Relief Services Limited [2021] eKLR (supra) on the instances when the court can enter into the arena of merit review. That, however is not a carte blanche for the court to run roughshod over the decisions of surbodinate courts or tribunals to an extent of usurping their power or substituting their decision with that of the court. Where, like in this, the board has acted within its jurisdiction and where no illegality, irrationality or procedural impropriety on the part of the Board is established, judicial review cannot lie. What is clear from the material before court is that the Board made conclusions based on representations by the parties and the law. It is not for the court to fault the said decision as the court is not sitting on appeal. Indeed, the judicial review application herein is couched as an appeal and thus fails the test.

45. The decision in Republic vs Kenya Power & Lighting Company Limited & Another [2013] eKLR, sums up the legal position in so far as the application before this court is concerned. The court stated;“The Board considering all the arguments of the applicant and made findings on each of those issues. The Board may have been wrong in its decision but this court would be usurping the statutory function of the Board were it to substitute its own views for those of the Board.’’

46. The net result is that the issue for determination answers in the negative. The applicant has not established any grounds upon which orders of judicial review can issue. The Notice of motion dated 6th of April 2022 is without merit and is dismissed. Each party to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY 2022. .........................................A. K. NDUNGUJUDGE