[2017] KEHC 2939 (KLR)

[2017] KEHC 2939 (KLR)

The High Court held that the Public Procurement Administrative Review Board had jurisdiction over the subject tender, as the procurement was not exempted under section 4(2)(f) of the Public Procurement and Asset Disposal Act, 2015. The Court found that Article 227 of the Constitution mandates all public procurement to adhere to principles of fairness, transparency, and competitiveness, and that statutory exemptions must be interpreted narrowly. However, the Court determined that the Board acted ultra vires by basing its decision on issues not raised in the Request for Review—specifically, the correction of tender sums and the qualifications of the successful bidder—without affording the...

Citation
[2017] KEHC 2939 (KLR)
Parties
Applicant: Geothermal Development Company Limited; Applicant: Netfast Communications Limited; Respondent: Public Procurement Administrative Review Board; Interested Party: Lex Oilfield Solutions Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
17 October 2017
Case Number
Miscellaneous Application 71 & 72 of 2017
Procedural Posture
Miscellaneous Application / Judgment on Consolidated Judicial Review Applications for Certiorari and Related Reliefs
Outcome
Application allowed; Board's decision quashed; matter remitted for rehearing; no order as to costs.
Judges
GV Odunga
Legal Topics
Public Procurement Review, Natural Justice, Jurisdiction of Statutory Bodies, Fair Administrative Action, Tender Award Challenges
Source Language
English
Administrative Law Commercial and Corporate Public Procurement Review Natural Justice Jurisdiction of Statutory Bodies Fair Administrative Action Tender Award Challenges

Case Brief

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Parties

Geothermal Development Company Limited

Applicant

Netfast Communications Limited

Applicant

Public Procurement Administrative Review Board

Respondent

Lex Oilfield Solutions Limited

Interested Party

Procedural Posture

Miscellaneous Application / Judgment on Consolidated Judicial Review Applications for Certiorari and Related Reliefs

Legal Issues

  1. 1 Whether the Public Procurement Administrative Review Board had jurisdiction over the subject tender given the alleged exemption under section 4(2)(f) of the Public Procurement and Asset Disposal Act, 2015.
  2. 2 Whether the Board acted ultra vires by determining issues not raised in the Request for Review and without affording parties an opportunity to be heard on those issues.
  3. 3 Whether the principles of natural justice and fair administrative action were breached by the Board's process.

Ratio Decidendi

The High Court held that the Public Procurement Administrative Review Board had jurisdiction over the subject tender, as the procurement was not exempted under section 4(2)(f) of the Public Procurement and Asset Disposal Act, 2015. The Court found that Article 227 of the Constitution mandates all public procurement to adhere to principles of fairness, transparency, and competitiveness, and that statutory exemptions must be interpreted narrowly. However, the Court determined that the Board acted ultra vires by basing its decision on issues not raised in the Request for Review—specifically, the correction of tender sums and the qualifications of the successful bidder—without affording the...

Court Disposition

Application allowed; Board's decision quashed; matter remitted for rehearing; no order as to costs.

Orders

  • The Respondent’s decision dated 8th February, 2017 in Public Procurement Administrative Review Board Application No. 4 of 2017 is quashed.
  • The Respondent is directed to hear the request for review de novo, affording all parties an opportunity to be heard on the relevant issues.