[2011] KEHC 4232 (KLR)
The court held that since the ex parte applicant's application was marked as overtaken by events and no findings were made on its merits, the decision of the Public Procurement Administrative Review Board in favour of the Interested Party remained intact. The Interested Party was not responsible for the fate of the...
Source-derived case information.
- Citation
- [2011] KEHC 4232 (KLR)
- Parties
- Applicant: Republic; Respondent: Public Procurement Administrative Review Board; Interested Party: Brinks Security Services Ltd; Applicant: Egerton University
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 530 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Costs After Substantive Application Overtaken by Events
- Outcome
- Application for judicial review marked as overtaken by events; costs awarded to Interested Party.
- Judges
- DK Musinga
- Legal Topics
- Costs Award, Judicial Review, Public Procurement, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Public Procurement Administrative Review Board
Respondent
Brinks Security Services Ltd
Interested Party
Egerton University
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Costs After Substantive Application Overtaken by Events
Legal Issues
- 1 Whether the Interested Party is entitled to costs after the substantive application was overtaken by events.
- 2 Whether the court should exercise its discretion to award costs to the Interested Party in the circumstances.
Ratio Decidendi
The court held that since the ex parte applicant's application was marked as overtaken by events and no findings were made on its merits, the decision of the Public Procurement Administrative Review Board in favour of the Interested Party remained intact. The Interested Party was not responsible for the fate of the application. Applying Section 27 of the Civil Procedure Act and established case law, the court exercised its discretion to award costs to the Interested Party, finding no reason to depart from the general rule that costs follow the event.
Court Disposition
Application for judicial review marked as overtaken by events; costs awarded to Interested Party.
Orders
- The Interested Party is entitled to the costs of the matter.
- Costs shall be taxed as usual unless agreed upon.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 530 OF 2008
REPUBLIC..............................................................................................................................APPLICANT
AND
THE PUBLIC PROCUREMENTADMINISTRATIVE REVIEW BOARD.........................RESPONDENT
BRINKS SECURITY SERVICES LTD....................................................................INTERESTED PARTY
EX PARTE:EGERTON UNIVERSITY
RULING
It is a settled principle of law that award of costs is in the discretion of the court. See KISKA LTD vs. DE ANGELS[1969] E.A. 6. Section 27 of the Civil Procedure Act provides that the costs of any action, cause or other matter or issue shall follow the event unless the court shall for good reason otherwise order.
On 1st December, 2010 the advocates for the parties herein agreed by consent that the substratum of this matter had been lost by effluxion of time and that the only outstanding issue is whether the Interested Party is entitled to the costs of the suit. As between the applicant and the respondent the matter was marked as settled with each party bearing its own costs.
The facts that gave rise to the suit may be simply stated as follows: The Interested Party filed an appeal before the Public Procurement Administrative Review Board, the respondent, on 23rd July, 2008. The appeal was against the decision of the Tender Committee of Egerton University, the ex parte applicant. The Interested Party successfully challenged the tendering process and the award of tender for provision of security services was annulled and the ex parte applicant was ordered to re-tender within 90 days. The ex parte applicant was ordered to review the contract of the Interested Party for a period of 90 days pending conclusion of the tendering process.
The ex parte applicant re-advertised the tender but refused to comply with the order of the Board requiring the contract of the Interested Party to be extended for 90 days pending the tendering process. The orders of the Board were made on 22nd August, 2008 and the ex parte applicant moved this court for judicial review orders on 1st September, 2008. The court certified the matter urgent, granted leave and directed the ex parte applicant to file the substantive motion within 21 days from the aforesaid date. The court further directed that the grant of leave do operate as stay of the orders of the Board. The ex parte applicant filed the substantive application on 8th October, 2008.
The ex parte applicant’s application, having been marked as overtaken by events, the decision of the Board which was in favour of the Interested Party is left intact. This is because the court did not make any findings on the merits of the ex parte applicant’s application. In the circumstances, the Interested Party is entitled to the costs of the application. In any event, the Interested Party was not to blame for the fate of the ex parte applicant’s application.
This court finds that the Interested Party is entitled to the costs of the matter. The costs shall be taxed as usual unless agreed upon.
DATED, SIGNED and DELIVERED at NAIROBI THIS 1ST DAY OF FEBRUARY, 2011.
D. MUSINGA
JUDGE
In the presence of:
Nazi – court clerk
No appearance for the applicant
No appearance for the respondent
Morris Kimuli for the interested party