[2021] KEHC 9256 (KLR)
The court declined to grant the stay of the procurement process because the ex parte Applicant failed to serve the Respondent and Interested Parties with the necessary pleadings and submissions, as previously directed. The court held that without evidence of such service, it could not confirm the status of the...
Source-derived case information.
- Citation
- [2021] KEHC 9256 (KLR)
- Parties
- Applicant: Republic; Respondent: Public Procurement Administrative Review Board; Interested Party: The Accounting Officer Kenyatta National Hospital; Interested Party: Kenyatta National Hospital; Interested Party: Kamtix Cleaners Co. Ltd.; Applicant: The Gardens and Wedding Centre Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E1111 of 2020
- Procedural Posture
- Judicial Review Application / Interlocutory Ruling on Stay Application
- Outcome
- Interim stay declined; directions issued for service and further conduct of proceedings.
- Judges
- P Nyamweya
- Legal Topics
- Judicial Review, Public Procurement, Leave to Commence Proceedings, Stay of Proceedings
- 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
The Accounting Officer Kenyatta National Hospital
Interested Party
Kenyatta National Hospital
Interested Party
Kamtix Cleaners Co. Ltd.
Interested Party
The Gardens and Wedding Centre Limited
Applicant
Procedural Posture
Judicial Review Application / Interlocutory Ruling on Stay Application
Legal Issues
- 1 Whether the ex parte Applicant is entitled to an order that leave to commence judicial review proceedings operates as a stay of the procurement process.
- 2 Whether failure to serve pleadings and submissions on the Respondent and Interested Parties disentitles the Applicant to interim relief.
Ratio Decidendi
The court declined to grant the stay of the procurement process because the ex parte Applicant failed to serve the Respondent and Interested Parties with the necessary pleadings and submissions, as previously directed. The court held that without evidence of such service, it could not confirm the status of the procurement or exercise its discretion in favour of the Applicant. Compliance with procedural requirements, particularly service, is a prerequisite for the grant of interim relief in judicial review proceedings. The Applicant was given a final opportunity to effect service, failing which the suit would be liable to dismissal for non-prosecution.
Court Disposition
Interim stay declined; directions issued for service and further conduct of proceedings.
Orders
- Prayer 3 of the ex parte Applicant's Chamber Summons dated 21st September 2020 seeking a stay of procurement process is declined.
- The ex parte Applicant is granted a final opportunity to serve the Respondent and Interested Parties with all relevant pleadings and documents within 21 days, failing which the suit shall be liable to dismissal for non-prosecution.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. E1111 OF 2020
BETWEEN
REPUBLIC.................................................................................................................................APPLICANT
VERSUS
PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD............................RESPONDENT
THE ACCOUNTING OFFICER KENYATTA NATIONAL HOSPITAL....1ST INTERESTED PARTY
KENYATTA NATIONAL HOSPITAL............................................................2ND INTERESTED PARTY
KAMTIX CLEANERS CO. LTD.....................................................................3RD INTERESTED PARTY
EX PARTE: THE GARDENS AND WEDDING CENTRE LIMITED
RULING NO 2
1. This matter was coming up for reservation of a ruling date on prayer 3 of the ex parte Applicant’s Chamber Summons dated 21st September 2020, that the grant of leave herein to commence judicial review proceedings operates as a stay of the procurement process of Tender No. KNH/V33/2020-2021. The ex parte Applicant has in this regard been directed severally to serve the Respondents and Interested Parties with his pleadings and submissions on the prayer for stay. Upon perusal of the Court record there is still no evidence of such service.
2. This Court is in the circumstances not able to confirm the status of implementation of the impugned procurement, as the Respondents and Interested Parties have not filed any response or submissions, as a result of the non-compliance by the ex parte Applicant. For this reason, this Court is not able to exercise its discretion in favour of the ex parte Applicant.
3. I accordingly order as follows:
I.Prayer 3 of theex parteApplicant’s Chamber Summons dated 21st September 2020 seeking orders that the grant of leave herein do operate as a stay of procurement process of Tender No. KNH/V33/2020-2021 is declined.
II. The ex parte Applicant is granted the last opportunity to serve the Respondent and Interested Parties with (i) the substantive Notice of Motion dated 1st October 2020 (ii) the Chamber Summons dated 21stSeptember 2020and its supporting documents, (iii) copy of this ruling and of the ruling delivered herein on 1st October 2020, and (v) a hearing notice, within twenty-one (21) days from today’s date. Upon default, this suit shall be liable to dismissal for non-prosecution.
III. Upon being served with the said pleadings and documents, the Respondent and Interested Parties shall be required to file their responses to the substantive Notice of Motiondated1stOctober 2020within twenty-one (21) days from the date of service.
IV. This matter shall bementioned on 16thApril 2021 to confirm compliance and for further directions.
V. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determinethe ex parte Applicant’sNotice of Motiondated1stOctober 2020on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.
VI.All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com and asunachristine51@gmail.com.
VII.The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com with copies to asunachristine51@gmail.com.
VIII.The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.com with copies to asunachristine51@gmail.com.
IX.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention on 16thApril 2021.
X.The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the ex parte Applicant by electronic mail by close of business on Friday, 22nd January 2021.
XI.Parties shall be at liberty to apply.
4. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 21ST DAY OF JANUARY 2021
P. NYAMWEYA
JUDGE