[2017] KEHC 906 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. 621 OF 2016.

IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF: THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015

AND

THE PUBLIC PROCUREMENT REGULATIONS, 2006

AND

IN THE MATTER OF: THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD

AND

IN THE MATTER OF: APPLICATION NO. 94 OF 2016 OF 10th NOVEMBER, 2016;

CONCERNING

TENDER NO. KMFRI/03/ 2016/2017 THE SUPPLY ANDDELIVERY OF VARIOUS OFFICE FURNITURE AND FITTINGS

REPUBLIC ……………....................................................................APPLICANT

-VERSUS-

PUBLIC PROCUREMENT

ADMINISTRATIVE REVIEW BOARD................................1ST RESPONDENT

KENYA MARINE & FISHERIES

RESEARCH INSTITUTE……………...…………………...2ND RESPONDENT

ATTORNEY GENERAL……………...………..….………..3RD RESPONDENT

LYAPE INVESTMENTS……...………………………….INTERESTED PARTY

EXPARTE

FURNITURE ELEGANCE LIMITED

JUDGMENT

1. On 13th December 2016 the exparte applicant Furniture Elegance Limited was granted leave of court to institute Judicial Review proceedings and on 11th January 2017 the exparte applicant filed a notice of motion dated 10th January 2017 seeking for the following Judicial Review orders:

1) An order of Certiorari removing to this court for the purposes of being quashed the decision of the Public Procurement Administrative Review Board made on the 1st December , 2016 in Application No. 94/2016 of 10th November 2016.

2) An order of Prohibition to prohibit and restrain the second respondent from acting upon the decision made by the 1st respondent made on 1st December 2016 or and/or signing any contract with any persons or entity other than the applicant in respect to the tender in question.

3) The costs of this application be provided for.

2. The notice of motion is predicated on the grounds set out in the statutory statement and verifying affidavit and annextures accompanying the chamber summons dated 9th December, 2016 for leave. The verifying affidavit is sworn by Firoze Bachu.

Exparte applicant’s case

3. The exparte applicant’s case as set out in the statutory statement and verifying affidavit sworn on 9th December 2016 is that on 10th November 2016 the interested party Lyape Investments filed a Request for Review before the 1st respondent Review Board challenging the award of the Tender No. KMFRI/03/2016-2017 for supply and delivery of various office furniture and fittings.

4. After receiving the Request for Review from the interested party, the 1st respondent served a copy on the 2nd respondent procuring entity Kenya Marine and Fisheries Institute notifying it of the pending review and requiring it to make an appearance for the hearing of the Review in accordance with Regulation 74(1) and (2) of the Public Procurement and Disposal Regulation, 2006. The Request for Review was heard interpartes and a decision made on 1st December 2016 allowing the Request for Review by the interested party.

5. It is alleged that previously, the interested party had filed a Request for Review No. 83 of 2016 of 28th October 2016 wherein the award by the Procuring Entity annulled the award of the tender made to the exparte applicant and directed the interested party to be re-admitted back into the procurement process and that a fresh Technical and Financial Evaluation of all the tenderers that had made it past the Preliminary Evaluation Stage be carried out by the second respondent Procuring Entity and an award be made to the lowest evaluated bidder within fourteen (14) days of the date of the decision.

6. The exparte applicant claims that the aforesaid decision was adhered to although the Procuring Entity in carrying out the re-evaluation process used copies of bid documents instead of the original documents and that it proceeded to award the tender to the exparte applicant using the parameters set out in the tender document, while acknowledging that the tender document did not contain the criteria for technical and financial evaluation.

7. The interested party being aggrieved by the decision of the Procuring Entity awarding the tender to the exparte applicant, filed a Request for Review No. 94/2016 and on 1st December 2016 the Review Board annulled the tender which was awarded to the applicant and substituted the decision of the Procuring Entity with that of the Review Board, awarding the tender to the applicant (interested party) at the quoted price of kshs 14,667,770 and directed the Procuring Entity to issue a letter of notification of the award to the applicant on or before 6th December, 2016, and file a copy of the letter with the Board by the said 6th December 2016.

8. It is alleged that albeit the interested party had lamented in its grounds for review that there was no criteria for technical and financial evaluation and praying inter alia, for the process to start afresh, that instead, the Review Board proceeded in its aforesaid ruling to award the tender to the interested party herein.

9. The exparte applicant challenges the Review Board’s decision made on 1st December 2016 on grounds of illegality in that as there was consensus by all parties that the technical and financial criteria were lacking in the tender documents, there was no basis for an award to be made to the interested party and to punish the procuring entity to pay costs. It was averred that in any event, the interested party was not the lowest evaluated bidder.

10. The exparte applicant further alleges that the Review Board violated the applicant’s legitimate expectation that the Review Board shall abide by the law and that the Review Board considered irrelevant facts and failed to consider relevant ones. In this case, it was claimed that the Review Board’s awarding of the tender to the interested party who was not the lowest evaluated bidder violated Section 86(1) (a) of the Public Procurement and Asset Disposal Act and that by so doing, acted irrationally.

11. Further, the exparte applicant claimed that the decision of the Review Board was capricious, arbitrary, oppressive and unfair and cannot be justified within the law.

The interested party’s case

12. The interested party Lyape Investments Ltd filed a replying affidavit sworn by Andrew Kuria Wangunyu on 27th January 2017 deposing that its complaint before the Review Board in the application No. 83/16 of 7th October 2016 was that the Procuring Entity had refused to award the tender to the interested party despite the latter being the lowest tenderer with a financial quotation of kshs 14,667,770 after the Procuring Entity had earlier awarded the tender to the exparte applicant herein at a sum of kshs 21,700,000.

13. According to the interested party, despite the Procuring Entity’s Tender Committee being ordered by the Review Board to readmit the interested party into the Technical and Financial Evaluation, the Committee disregarded the directive and instead wrote to the interested party on 9th November 2016 informing it that:

i. Technical literature not provided as required and therefore conformity to specifications could not be verified; and

ii. Has no similar contract which is above 11,000,827 so ( 75% tender sum) provided a copy of duplicate LPO of 11,200,500 supplied in 2012 and 11,497,500 which is not dated, not referenced or signed.

14. The interested party denied the allegations that it did not provide the technical literature required or that it had no similar contracts as stipulated in the letter of notification, because it provided Local Purchase Orders obtained and supplied.

15. It was further contended that it was the above situation that prompted the interested party to file the second Request for Review seeking for annulment and setting aside of the tender award to the applicant and seeking that the interested party be declared the lowest evaluated bidder and be awarded the subject tender, which request for review was determined in its favour on 1st December 2016.

16. It was also contended that Mr Nderitu the Accounting Officer of the Procuring Entity appeared before the Review Board and conceded that the Procuring Entity did not readmit the interested party into the bidding process and neither did it subject the interested party’s bid to financial and technical evaluation as earlier ordered by Review Board on 28th October 2016.

17. Further, the interested party claimed that an evaluation of a tender or a reevaluation of the tender can only be done by analyzing , assessing and reviewing the primary tender documents which documents the Procuring Entity refused and failed to collect from the Review Board’s office.

18. The interested party further claimed that when it presented its first Request for Review, the exparte applicant in opposing the request defended the award of the tender to the interested party arguing that the latter had lawfully won the tender after being subjected to financial and technical evaluation by the 2nd respondent Procuring Entity.

19. The interested party maintained that the applicant having defended the tender process and tender document, cannot in law approbate and reprobate after losing the matter before the Review Board.

20. Further, that the Review Board acted within its powers in ordering the 2nd respondent to readmit the interested party into the bidding process and to further conduct a technical and Financial Evaluation of its bid, using the same parameters as had been applied in the award of the tender to the applicant and in line with the prayers sought by the interested party in its request for Review.

21. The interested p[arty contended further that the Review Board having ordered the Procuring Entity to readmit the interested party into the bidding process and to subject its bid to the technical and Financial Evaluation, the Review Board could not sit on its own appeal over its decision by making contrary orders when considering the second request for Review No 94/2016.

22. On the issue of costs, the interested party contended that Section 173 of the PPAD Act gives to the Review Board wide powers and discretion to order the payment of costs as between parties in litigation before it.

23. Further, that under Section 176 of the Act, any person who contravenes or disobeys the orders of the Review Board commits an offence and is liable to severe sanctions including surcharge, imprisonment and heavy costs hence, the Review Board was well within the law to punish the 2nd respondent Procuring Entity with payment of costs as the 2nd respondent had willfully disregarded its orders hence the decision of the Review Board made on 1st December 2016, was meritorious and based on the applicable law.

24. It was also contended by the interested party that the contract entered into on 13th December 2016 between the interested party and the Procuring Entity for supply of office furniture and fittings for shs 14,667,770 is a valid contract as it was entered into within 60 days and that the said furniture have already been procured by the interested party from China as per the contract at USD 72,099 and that by the time the stay orders of this court were served on the interested party’s advocates, the agreement had already been executed and the interested party had procured the furniture only to learn of the stay orders on 29th December 2016 upon his return to Kenya hence these proceedings have been overtaken by events.

25. It was deposed on behalf of the interested party that the applicant had not satisfied the legal requirements for grant of the judicial review orders sought and therefore the court was urged to disallow the exparte applicant’s application.

The 1st Respondent’s case.

26. The 1st respondent Review Board filed a replying affidavit sworn by Henock K. Kirungu on 8th March 2017 deposing that the Review Board received a request for review from the interested party and in accordance with Regulation 74(1) and (2) of the 2006 Regulations made under the repealed Act, notified the Procuring Entity and that the Review Board considered the request interpartes on 25th and 29th November 2016 and delivered its decision on 1st December 2016, annulling the award of the subject tender to the applicant by the Procuring Entity, while allowing the Request for Review by the interested party and substituting the decision of the Procuring Entity with the Review Board’s own decision awarding the tender to the interested party at the quoted price of shs 14,667,770; and directing the Procuring Entity to issue a letter of notification of the award to the interested party on or before 6th December 2016 and file a copy of the letter with the Board by the said 6th December 2016.

27. The Review Board also conceded that it ordered that the interested party to be paid ksh 313,330 as costs by the procuring entity and directed the matter to be mentioned on 6th December 2016 at 4. 30 pm to confirm compliance with the Review Board’s orders and for any further orders and directions.

28. The Review Board contended that in making its decision, it considered all documents of evidentiary value placed before it and submissions by all parties on each of the issues raised.

29. It was further contended that the Review Board’s decision was made within its mandate under Section 173 of the Act and that the exparte applicant had not demonstrated that the impugned decision is ultravires or that the Review Board is guilty of any illegality; malafides, malicious, whimsical or was made for ulterior or improper motive.

30. It was therefore contended by the 1st Respondent Review Board that the application herein is made in bad faith, unmeritorious, and only calculated to discredit the credibility of the respondent’s mandate and functions, while ultimately eroding the public confidence in procurement procedures and processes.

31. It was further contended that it had not been demonstrated that the Review Board in arriving at its decision acted irresponsibly, capriciously, unreasonably, unprocedurally and or that its conduct was aimed at frustrating the applicant’s legitimate expectation that the due process and law would be followed.

32. Further, it was contended that the applicant had not demonstrated that the Review Board’s conduct exhibited bias and partiality incompatible with its roles and duties.

33. The 1st respondent therefore urged this court to dismiss the exparte applicant’s application for Judicial Review for want of merit while maintaining that the Board’s decision was nothing short of reasonable, consistent and in line with the exercise of its powers and the provisions of the Public Procurement and Asset Disposal Act, 2015.

The 2nd Respondent’s case.

34. The 2nd respondent Procuring Entity filed its replying affidavit sworn by Patrick Onchonga Ogamba its Head of procurement deposing that the 2nd respondent is a recipient of donor funding through International Bank for Reconstruction and Development for purposes of the tender subject of these Judicial Review proceedings.

35. According to the 2nd respondent, there are violations of the law and the Constitution arising from the 1st respondent (Review Board’s) decision made on 1st December 2016 awarding the tender to the interested party and these violations are that:

i. in annulling the tender awarded to the exparte applicant and awarding it to the interested party, the Review Board conducted an evaluation based on a criteria not set out in the tender document and therefore breached clear mandatory provisions of Section 80(2) of the Public Procurement and Asset Disposal Act.

ii. the Review Boards’ decision was only based on financial value of bids whilst ignoring all other aspects of the tender process which the interested party had not met more particularly instructions to bidders at clause 30:1.

iii. the Review Board failed to appreciate that the Procuring Entity is under an obligation to consider all other aspects of the tender document as provided for in the tender and where the bid does not comply, to reject them.

iv. the Review Board’s consideration of the lowest bidder as a form of cost effectiveness does not infer that the Procuring Entity must go for the lowest tender no matter the results of the evaluation bid.

v. in the circumstances, it was unlawful for the 1st respondent Review Board to award the tender simply on the basis that the bid is the lowest as the evaluation must be the lowest evaluated in accordance with the tender.

vi. the 1st respondent acted unreasonably and substituted itself for the Procuring Entity in matters that the Procuring Entity had addressed itself correctly.

vii. the award to the interested party was riddled with procedural impropriety in that it amounted to by passing an important and critical stage in the tender process.

viii. the Review Board took into account matters which were irrelevant while ignoring instructions to bidders and that it had no authority to substitute its decision with that of the Procuring Entity.

ix. when the Board made a determination in Application No. 83 of 2016 it made no orders as to costs but on 1st December 2016 while it was functus officio revisited the issue of costs and ordered the Procuring Entity to bear costs in addition to surcharging its officials without according them a hearing.

x. the officials of the 2nd respondent were not afforded an opportunity to be heard fairly and a decision to surcharge them was made on expediency.

xi. there having been concession that there was no criteria for technical and financial evaluation of the tender, the award by the Review Board was illegal.

xii. the Board acted ultra vires in recalling its earlier decision and ordering for costs against the Procuring Entity yet it had earlier ordered in Application No.83/2016 that each party do bear their own costs hence the decision was irrational and unreasonable.

xiii. the Review Board treated the exparte applicant unfairly and impartially in failing to award it costs;

xiv. the decision of the Review Board was ultra vires, illegal, made in bad faith, malicious, whimsical and is for an ulterior or improper motive; that the Review Board acted irresponsibly, arbitrarily, capriciously, unreasonably, unprocedurally and that it conduct was aimed at frustrating the applicant’s legitimate expectations that due process and the law will be followed; that the Review Board’s conduct exhibits bias and partiality incompatible with its roles and duties, that the Review Board’s decision was made against the principles of public interest and legitimate expectation.

xv. the decision of the Review Board amounted to evaluation and award of the tender to another bid yet it is not possessed with powers to evaluate the tender or bids.

xvi. having found that there was no technical evaluation criterion in the tender document, the 1st respondent Review Board was blowing hot and cold at page 19 of its award when its award when it proceeded to substitute the decision of the Procuring entity with its own decision which decision was unlawful.

xvii. the Review Board has no power to compel the Procuring Entity to act unlawfully hence the decision of 1st December 2016 was made outside jurisdiction and under an assumed lawful legal framework.

36. The 2nd respondent therefore supported the exparte applicant’s notice of motion urging the court to grant the orders sought.

37. The 2nd respondent also filed supplementary affidavit basically reiterating the depositions in the replying affidavit and maintaining that the 1st respondent had no power to evaluate the tender and award it to interested party.

38. Further, that the award of the tender to the interested party violated Section 80(2) of the PPAD Act; it ignored instructions to bidders No. 30: 1; and that the Review Board considered only the aspect of the interested party being the lowest bidder and not other aspects of the tender.

39. It was averred that the bid by the interested party did not accord with instructions to bidders No, 30:1 and that for a tenderer to be substantially responsive must be a bid that conforms to all the terms, conditions and specifications of bidding documents without material deviation, reservation or omission.

40. That in this case, the interested party’s bid had material deviation, reservations or omissions which if rectified would unfairly affect the competitive positions of other bidders and therefore it was not substantially responsive and was thus rejected by the 2nd respondent Procuring Entity hence it could not be subsequently made responsive by correction.

41. That no literature was provided and the interested party had no proof of similar contracts performed in the last years. Further, that the document allegedly availed was unsigned and related to a period outside the three (3) years.

42. That the tender was to be handled within the confines of the tender documents and not as per the directions of the 1st respondent Review Board which directions would otherwise be unlawful.

43. That the fact that secondary documents were used in the re-evaluation cannot negate the tendering/evaluation process as there was no demonstration that the use of secondary tender documents prejudiced the interested party’s bid.

44. The 2nd respondent maintained that the interested party was not the lowest evaluated bidder as stipulated in Section 66(3) and (4) of the PPAD Act and that the Board should have, after setting aside the Procuring Entity’s decision, rejected the bids and subsequent award.

45. Further, it was contended that the decision to surcharge officials of the 2nd respondent was made on expediency without according them fair administrative action and an opportunity to be heard.

46. That although a contract had been signed after notification as directed by the Review Board, the Local Purchase Order (LPO) had not been issued as the Procuring Entity received a stay order from this court prior to issuing an LPO hence if the interested party proceeded to China to purchase the furniture, he did so on his own frolic and that in any event the visa on his passport annexed expired in 2013 and that there was no entry showing he entered China on the alleged date.

47. It was averred that a proforma invoice is merely a quotation and does not constitute a contract. The 2nd respondent denied that the application herein had been overtaken by events and maintained that the matters raised will be determined as per the legal provisions.

The Interested party’s rejoinder

48. In rejoinder to the 2nd respondent (Procuring Entity’s ) supplementary affidavit, the interested party filed a further affidavit sworn by Andrew Kuria Wangunyuon 10th March 2017 reiterating his earlier depositions while annexing copies of valid visa and contending that the 2nd respondent had colluded with the exparte applicant and is using this court to sanitize their illicit, illegitimate, fraudulent and corrupt enterprise.

49. That the 2nd respondent’s decision to declare the interested party’s bid non-responsive and in proceeding to award the tender to the exparte applicant is unlawful and that despite the decision by the Review Board made in Review case No. 83/2016 directing the 2nd respondent to readmit the interested party into the Technical and Financial Evaluation alongside other bidders, the 2nd respondent flagrantly and brazenly disobeyed that directive and instead proceeded to reject the interested party and awarded the tender to the exparte applicant without carrying out a Technical and Financial Evaluation as ordered by the 1st respondent Review Board.

50. The interested party also claimed that the 2nd respondent defended its decisions to award the tender to the exparte applicant and that at no time did it complain about the inadequacy, defect or illegality if its own bid documents. It was claimed that the eager with which the 2nd respondent awarded the exparte applicant the tender is manifest of irresistible inference of a fraudulent and corrupt practice being drawn considering its brazen disregard of an order of the Review Board to carry out a Technical and Financial Evaluation afresh after readmitting the interested party into the evaluation process, is a confirmation of the collusion between the exparte applicant and the Procuring Entity.

51. The interested party claimed that its bid was the lowest evaluated bid of all the bids that were admitted to the Technical and Financial Evaluation stage hence it should be upheld and that despite the order of the Review Board in case No. 83/2016, the 2nd respondent disregarded that order which had directed that the interested party be readmitted into the evaluation process and that neither did the 2nd respondent appeal against that ruling thereby flouting the directive.

52. According to the interested party, the Technical and Financial Evaluation was done and it denied that it was advised d to wait for the LPO. The interested party attached copy of valid visa and invoices raised for orders made for the procured goods while he was in China.

Submissions

53. The parties’ advocates filed written submissions which they canvassed orally on 23rd March, 2017.

Exparte Applicant’s Submissions

54. On the part of the exparte applicant, Mr Masika Advocate submitted that the Review Board’s decision is tainted with illegality. That the Board committed an error of law in light of Section 80 and 85 of the PPAD Act, 2015. That before the Review Board, it was conceded that the tender documents lacked Technical and Financial Evaluation but that the Board nonetheless entertained the review, as shown on page 48 of the Chamber Summons for leave. In this case, it was submitted that Section 80 of the Act was flouted since there was no criteria for evaluating the tender as the bid documents did not provide marks at the technical stage and that there was no pass mark.

55. On the issue of costs, it was submitted that in the earlier request for review, the Board ordered that each party bear their own costs but in the latter Review of 1st December 2016, the Board awarded costs with respect to the earlier proceedings .

56. It was further submitted that the Board also directed an award to be made by 6th December 2016 and full compliance thereof directed which was an attempt to take away the applicant’s right of appeal as per Section 175 of the Public Procurement and Asset Disposal Act. That the decision was only availed on 6th December 2016. In the applicant’s view, that directive was in breach of the law.

57. It was submitted that a public body has no jurisdiction to commit an error of law. Reliance was placed on the grounds stated in the application, the affidavit of Phiroze, authorities cited and written submissions and the case of Republic vs Public Procurement Administrative and Review Board Exparte Akamai Creative Ltd JR 513/2015 where it was held that if there is no procedure stated in the bid documents then the documents should be referred back to the Evaluation Committee. Counsel prayed for the orders sought.

58. Mr Ochieng Counsel for the 2nd respondent procuring entity submitted in support of the Notice of Motion, and relied on 2 affidavits filed on 3rd March 2017 together with written submissions. It was submitted that the Review Board has wide powers on a request for review but those powers are not unlimited. That if the Review Board exceeds its powers outside the law then this court has the jurisdiction to intervene. It was submitted that the Board cannot read its own words into the tender documents but return them to the Tender Committee for redoing that which the Tender Committee should have done. Counsel maintained that the interested party was not the lowest evaluated bidder as it was never evaluated since there was no criteria upon which it could be evaluated on. Reliance was placed on the case of JGH Marine vs Western Marine Serviceson crossing of statutory boundaries.

59. Mr Ochieng submitted that the determination by the Board was different from what the Procuring Entity originally intended to do. Further, that Article 227 (1) of the Constitution enjoins the Review Board to uphold fairness, transparency and cost effectiveness which cost effectiveness depends on all other conditions being met but that in this case, the other credentials were not met. Counsel submitted that it is unlawful for the Procuring Entity to award a tender to a bidder who did not comply with tender documents and that all provisions of the tender must be read together not in isolation. Counsel urged the court to follow the R v PPARB exparte Akamai Creative Limited and Coast Water Services Board &another case (Authority No. 8 on the list and bundle of authorities filed) and grant the orders sought by the exparte applicant.

60. It was further submitted that after the Review Board found that there were no marks, it should have asked the Procuring Entity to retender not for the Review Board to direct the award of the tender.

61. On the issue of costs, it was submitted that there were no costs awarded in the previous review and that the Review Board became functus officio. That the Board punished Procuring Entity officials without giving them a hearing, in a matter where no costs had been awarded, which act, it was submitted, was illegal and contravenes the rules of natural justice.

62. Counsel submitted that this not being an appeal, it was the illegality and irrationality of the Review Board that was being challenged, the court was urged to exercise its discretion to allow the application.

63. It was also submitted that the supplementary affidavit attacks officers of Procuring Entity without any basis hence it should be examined with a pinch of salt.

64. It was submitted that this was a World Bank funded project hence there was need for expediency in the decision to avoid funds being returned to the donors. It was also submitted that the Wednesbury’s decision supports the procuring entity’s case but that other English cases do not apply here and there is enough case law in Kenya developed by the courts.

65. To the surprise of this court, on behalf of the 1st and 3rd respondents, Mr Munene advocate submitted , opposing the application and relying on Mr Kirungu’s replying affidavit and the submissions filed on 10/10/2017, which written submissions mirror the replying affidavit as reproduced in these proceedings , and which affidavit agrees with the submissions filed by the exparte applicant. However, the oral submissions by Mr Munene were in opposition to the Notice of Motion.

66. On the issue of costs, Mr Munene submitted that there was no illegality demonstrated.

67. On the directive by the review Board that the award be made on 6th December 2016, it was submitted that the notification letter is not a contract hence it does not stand in the way of an appeal.

68. Mr Munene submitted that the court should disregard the issue of attacks on the Procuring Entity officials. He urged the court to dismiss the application for judicial review with costs.

Interested Party’s Submissions

69. On behalf of the interested party, Mr Masese strenuously and vehemently opposed the application. He relied on their client’s replying affidavit, further affidavit, annextures and interested party’s written submissions and list and bundle of authorities filed on 22nd February 2017.

70. According to Mr Masese, the matter was first before the Board vide Review Application No.83/2016 where the interested party challenged the award that had been made in favor of the applicant. That the applicant at the time did not raise any issue as to the inadequacy of the tender documents before the Tender Board. Instead, it was contended, that the applicant defended the documents and the award of the tender to themselves. That the initial award was set aside and the Procuring Entity was ordered to readmit the interested party and conduct a re-evaluation of Financial and Technical Bids of all parties passing preliminary stage. However, it was submitted that the procuring entity disregarded the order of the Board in contempt and acted Wednesbury unreasonably.

71. Mr Masese submitted that the Procuring Entity did not even collect original documents to enable them carry out re-evaluation of the bids as directed by the Review Board . that when the interested party applied for Review No. 94/16 the applicant herein never raised any complaint with regard to the tender documents because they benefited from the award.

72. Counsel for the interested party submitted that one cannot approbate and reprobate at the same time. Reliance was placed on the case of Republic vs Public Procurement and Asset Review Board Exparte Gibbs Ltd [2012] eKLR delivered by Honourable Korir J. and a submission made that there are only 3 grounds upon which this court can exercise its powers to review a decision of the Review Board namely:

i. Illegality

ii. Irrationality

iii. Procedural impropriety

73. According to Mr Masese, Section 27 of the Public Procurement and Asset Disposal Act establishes the Board. Section 167 allows an aggrieved person to apply for review and under Section 173, the Board has powers which are wide.

74. In this case, it was submitted that the 1st respondent had legal powers and jurisdiction and that in this court exercising judicial review jurisdiction it should not be engaged in a merit review but decision making process not merits of the decision, this not being an appellate court.

75. It was submitted that the decision making process in this matter was made in accordance with the law hence there are no grounds for grant of Judicial Review orders. Reliance was placed on the case of Kenya Pipeline Company Ltd vs Housing Ebara Company and Grain Bulk Handlers Ltd and JB Maina and Company Ltd.(2012]eKLR. Further reliance was placed on Anisminic Ltd v Foreign Compensation Commission [1969] ALL ER 213to argue that only where a tribunal acts without jurisdiction that its decision would be interfered with buy the court.

76. It was further submitted that the Review Board is a specialized Public Statutory Tribunal which is better equipped than the High Court to deal with these matters. Counsel urged the court to examine the decision sought to be reviewed carefully and be persuaded that it ought not to interfere with the tribunal’s decision, since the challenge was on the merits not decision making process. Reliance was placed on Grain HANDLERS limited v J.B Mina and Co. Ltd [2006]eKLR.

77. Further, it was submitted that the applicant’s right of appeal was not taken away.

78. On the issue of costs awarded by the Review Board, it was submitted that Section 175 of the Act allows the Review Board to award costs, and that there is nothing illegal about the order for costs against a contemptuous party. Counsel urged this court to dismiss the exparte applicant’s application with costs.

79. In a brief rejoinder, Mr Masika counsel for the exparte applicant submitted that the Gibb Africa Ltd vs PPARB [2012] eKLR case is not relevant because the exparte applicant herein was not the applicant before the Review Board. Further, that the issue of lack of a criteria for Financial and Technical Evaluation was raised at the Board as shown on 12 of the decision.

80. Mr Masika also submitted that his client had not suggested that a notification letter is a contract but the procedure adopted and requirement for compliance fully within 5 days of the decision when there is statutory stay until after 14 days, which directive was meant to violate the law and deny the applicant an opportunity to challenge the Review Board’s decision.

81. Counsel submitted that the Procuring Entity was punished in the latter review to pay costs in the previous review when the Review Board had become functus officio in the earlier proceedings. It was urged that this court cannot cement illegalities hence the judicial review orders sought herein should be granted as prayed.

DETERMINATION

82. Having considered the hotly contested matters above, upon reviewing the applicant’s position, that of the respondents and interested party and the parties respective submissions and case law and statutory enactments cited in their written and oral subm,issions, the main issues that flow for determination are:

1) Whether the exparte applicant is entitled to the Judicial Review orders of certiorari and prohibition sought in the notice of motion dated 10th January 2017.

2) What orders should this court make?

3) Who should bear the costs of these proceedings.

83. There are also ancillary questions that this court will endeavour to answer in the course of settling the above issues.

84. On the first issue of whether the exparte applicant is entitled to the orders sought seeking Judicial Review remedies of certiorari and prohibition, the ancillary question that must be answered is whether the contract entered into on 7th December 2016 pursuant to the notification of award made on 3rd December 2016 pursuant to the orders of 1st December 2016 made by the Review Board is a valid contract capable of performance and or implementation.

85. Section 175 of the 2015 Act stipulates:

“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 14 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.

2) The application for Judicial Review shall be accepted only after the aggrieved party pays a percentage of the contract value as security fee as shall be prescribed in Regulations.

3) The High Court shall determine the Judicial Review application within forty five days after such application.

4) A person aggrieved by the decision of the High Court may appeal to the Court of Appeal within seven days of such decision and the court of Appeal shall make a decision within forty five days which decision shall be final.

5) If either the High Court or the Court of Appeal fails to make a decision within the prescribed timeline under Subsection (3) or (4) , the decision of the Review Board shall be final and binding to all parties

6) A party to the Review which disobeys the decision of the Review Board or the High Court or the Court of Appeal shall be in breach of this Act and any action by such party contrary to the decision of the Review Board or the High Court or the Court of Appeal shall be null and void .

7) Where a decision of the Review Board has been quashed, the High Court shall not impose costs on either party.

86. According to the exparte applicant, the contract entered into between the Procuring Entity and the interested party pursuant to the decision of 1st December 2016 which directed notification of award to be made within 5 days by 6th December 2016 is illegal and that as the contract was executed before expiry of 14 days as stipulated in Section 175 (1) of the Act, the contract is null and void.

87. In JR 371/2016 Republic vs Public Procurement Administrative and Review Board Exparte Syner Chemie Ltd and Republic vs Public Procurement Administrative and Review Board Exparte Noble Gas International Ltd [2013] e KLRthe court held that Section 100 of the Repealed 2005 Act which is in parimateria with Section 175(1) of the current 2015 Act provided for a statutory stay and that no contract could be executed before expiry of the 14 days stipulated for fling of Judicial Review application to challenge the decision of the Review Board. The court stated:

“ In my view , where Judicial Review proceedings are commenced within 14 days from the date of the respondent’s decision, the said decision is neither final nor binding and hence ought not to be implemented. Thus, there is an automatic stay under Order 53 of the Civil Procedure Rules. The 14 days is a window period availed to serve the purpose of limiting the time frame within which a review against the Board’s decision can be lodged in the High Court for purposes of expediency and conclusiveness of the Board’s decision as these activities are time bound and the procurement process ought not to be held hostage to indefinite proceedings…..

The decision of the Board after the application for review has been filed remains subject to the court’s directions and decision. This provision answers the core question in contention that is whether the filing of Judicial Review proceedings before the High Court within the prescribed 14 days acts as an automatic stay. I take the position that Section 100 of the Act implies that the Board’s decision is to be kept in abeyance until the court makes its final decision. The use of the term “shall take effect” discloses the legislative purposes and intent.

For all practical purposes, the Board’s decision was “frozen” so to speak until such a time as the High Court issued an order of Judicial Review contemplated under the Section over the decision or after the lapse of the 14 days period, whichever comes first. I find and hold that provision a statutory stay.”

88. From the above decisions which have been cited in several cases before this court including JR 622/2016 Republic vs Public Procurement Administrative and Review Board Exparte Standard Butchery& Others [2017] eKLR , it is clear that the Procuring Entity and the interested party could not enter into any contract before expiry of 14 days from 1st December 2016.

89. In other words, parties cannot hide under an illegality perpetuated by either party to escape from the clear statutory provisions which are meant to protect those who are aggrieved by the decisions of the Review Board, to challenge those decisions.

90. In Republic vs Kenya Revenue Authority Exparte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530 it was held that:

“ the general principle remains, however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Therefore, where he law exhaustively provides for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies.

However, if Parliament gives great powers to them, the courts must allow them to it. The court must nonetheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals or boards must act in good faith; extraneous considerations ought not to influence its actions; and it must not misdirect itself in fact or law. See Re Hardial Singh and Others [1979] KLR 18……”

91. In the instant case, I have no hesitation in finding that the decision which is impugned herein having been made on 1st December 2016, the party who was aggrieved by the decision had an automatic statutory stay or the decision thereof remained ‘frozen’ for 14 days until 15th December 2016 to enable the aggrieved party challenge the decision by way of Judicial Review or by other means and therefore it follows that the hushed contract signed on 7th December 2016 was no contract or at all. It was null and void ab initio as it violated the provisions of Section 175(1) of the PPAD Act.

92. I must add that a tribunal or administrative body has no inherent power to direct the performance of a contract outside the stipulated statutory timelines. A contract in this case would only have been executed after expiry of 14 days from 1st December 2016 and not before. Consequently, I declare that contract executed on 7th December 2016 null and void and of no legal effect.

93. The next ancillary question relates to whether the Review Board has power to exercise criminal jurisdiction. It was claimed by the Review Board that it acted within the purview of Section 176 of the Act which stipulates that failure to obey orders of the Review Board amounts to a criminal offence.

94. The Review Board argued that the Procuring Entity disobeyed its orders in Review Board Case No. 83/2016 by refusing to readmit the interested party in the Technical and Financial Evaluation of the tender and for that reason, although in Review Board case No. 83/2016 the Review Board had ordered each party to bear their own costs, the Review Board penalized the Procuring Entity to pay costs in the Review Board case No. 83/2016 while deliberating on the subsequent case.

95. Section 176 of the Act falls in Part XVI of the Act on offences and sanctions. Section 176(1) (m) is clear that a person shall contravene a lawful order of the authority given under part IV or the Review Board under part XV. The rest of the prohibitions concern the tendering processes. Section 176(2) stipulates that a person who contravenes the provisions of Subsection (1) of this Section, commits an offence and shall be liable upon conviction.If the person is a natural person, to a fine not exceeding four million shillings or to imprisonment for a term not exceeding ten years or to both; If the person is a body corporate, to a fine not exceeding ten million shillings. In addition to the penalty under Subsection (2), a state or public officer involved shall be subject to internal disciplinary action while any other person or officer shall be de barred.

96. The above provisions, among others , provide for offences and penalties or sanctions under the Act and where there is no specific penalty provided, Section 177 comes in to provide for the penalty upon conviction.

97. The powers of the Review Board can be found in Section 173 of the 2015 Act and such powers, regrettably, do not include the power to give criminal sanctions. In other words, the powers of the Review Board do not include punishing for breaches under the Act, even if the breach involved breach of orders of the Review Board. The Review Board undoubtedly has no inherent powers or jurisdiction to punish any party before it for disobeying its orders or for breach of the provisions of the Act. A conviction contemplated under the Act for the stated breaches can only occur if there is a criminal trial initiated by the Director of Public Prosecutions and a person tried before a court of law. The Review Board can, at most, report the breaches to the DPP for investigation and prosecution.

98. The powers of the Review Board are expressly donated by the Act and not by implication. See Choitram v Mystery Model Hair Saloon[1972] EA 525Madan J( as he then was); Gullamhussein Sunderji vs Puja Lila and Another [1959] EA 734; Exparte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530.

99. Accordingly, I find and hold that the Review Board could not, under any circumstances purport to impose a penalty upon the procuring Entity for failure to adhere to the orders of the Review Board to readmit the interested party into the reevaluation process.

100. The other ancillary question relates to the allegation that the interested party did not meet the criteria set out in the tender documents. Section 80(2) of the Public Procurement and Asset Disposal Act is clear that the evaluation must be based on the criteria set out in the tender documents.

101. The notification of award letter dated 3rd December 2016 to the interested party enclosed the technical scope for the interested party to ensure compliance with.

102. The technical scope of the tender must form part and parcel of the tender documents send out to the bidders before they bid, not after they have submitted their bids.

103. Clearly, there is no way the Procuring Entity could have readmitted or included the interested party in their technical and financial evaluation because such customized scope was never there in the first place and if it was there, the 1st Request for Review before the Review Board could have referred to it. It follows that the whole tender process was a sham as there was no technical criteria set by the Procuring Entity which the bidders were expected to abide by to be evaluated upon.

104. There is no provision under the Act which confers upon the Board or the Procuring Entity jurisdiction to disregard tender documents and award a tender to a bidder based on criteria not contained in the tender document. There being no technical evaluation, customized criteria, it is not clear how the Procuring Entity arrived at the financial evaluation and therefore awarding the tender to the exparte applicant and in the same vein, there was no jurisdiction for the Review Board to cancel the tender awarded to the exparte applicant and award the same to the interested party merely because the interested party quoted the lowest amount compared to that submitted by the exparte applicant.

105. In my humble view, what the Review Board was doing and did was to carry out the evaluation process and coming up with its own purported successful tenderer. On that ground alone, I find that the Review Board acted unlawfully and ultravires and therefore its award of the tender to the interested party amounts to abuse of power.

106. In the Akamai Creative Ltd case,(supra) the court held inter alia that where the Review Board directs the Procuring Entity to award the tender to the interested party, it exceeds its jurisdiction and its decision is unlawful.

107. The Review Board has no power to consider only the financial value of the bids while ignoring all other aspects of the tender process and requirements, including the technical criteria.

108. In this case, I find that the attempt by the Procuring Entity to forward the technical scope to the interested party after the award of the tender following the order of 1st December 2016 could not cure the defect.

109. In the affidavit sworn by Andrew Kuria Wangunyu on behalf of the interested party on 10th November 2016, paragraph 8 is clear that the tender document did not provide the criteria for financial and technical evaluation hence the tender documents did not comply with Section 80 of the Act. The Review Board also conceded that the Procuring Entity did not have the tender documents for reevaluation as the said documents had been deposited with the Board.

110. The interested party also deposed on oath that the whole procurement process was fatally flawed and is a nullity ab initio.

111. The above being the factual position taken by the interested party on oath, this court does not comprehend that which has changed since that affidavit was sworn. Paragraph 11 of the said affidavit is also clear that the Procuring Entity refused to readmit the applicant into the technical and financial evaluation.

112. The Procuring Entity also complained that the interested party’s bid was not responsive as per Section 30 of instructions to bidders in that there was no proof of similar contracts in scope and value during the last three years; that the copy of LPO 1573464 for 11,200,000 supplied to GTI Baringo in 2012 was outside 3 years s and a duplicated copy of an LPO No. 1997075 for 11,497,500 supplied to GTI Matuga was not dated, not referenced or signed hence could not be authenticated.

113. The Review Board in its decision considered the above complaint /issue raised by the Procuring Entity at page 17 of its decision. The above documents are annexed to the Review Board’s replying affidavit and on the face of it, the court can see that indeed LPO No. 1997075 is not dated and not referenced, while No. 1573464 is dated 20th June 2012.

114. In the decision of the Review Board made on 1st December 2016, at page 6 of Part 2 “ Detailed Reevaluation” the Review Board states:

“The committee evaluated the bids for their responsiveness in the following areas;

- Technical responsiveness:

- Provision of technical literature

- Conformity to technical specifications

- Proof of similar contracts in scope and value for last 3 years

- Documentary Evidence to demonstrate existence of brands in the Kenyan Market for the last 2 years.

- Audited accounts for 2013, 2014, 2015

- Liquidity ration

- Annual average turnover.

115. The Board found that the Procuring Entity had conceded that there was no technical pass mark score for the bidders during the reevaluation process ( see page 11) of the decision. Further, that the Procuring Entity conceded that there was no pass mark assigned to any of the items at the technical evaluation stages. Further, that (at page 15), at the time of the purported reevaluation the original tender documents were/had been deposited with the Board. The Review Board goes further at pages 16 and 17 1st paragraph 1 of its decision to clearly state as follows concerning the technical reevaluation of the interested party’s bids:.

“ In order to determine this issue, the Board is constrained to examine the evaluation criteria in the tender document and the applicable law.

The Board notes that the technical evaluation is provided for at clause 33:2 of Section 1 of the tender document- instructions to bidders. The said clause is a general statement for tenders and which, ordinarily, is supposed to be customized at Section II of the tender document - Bidding Data Sheet. It is observed that in the tender the subject matter of this request for review, no such customization was done. It is further observed that the criteria for technical evaluation would ordinarily result in the award of scores to bidders and those who meet the minimum score are allowed to proceed to the financial evaluation stage. In the tender subject matter of this request for review, the Board notes that there was neither scoring of bidders at the technical evaluation stage nor an indication of the threshold mark to be attained by a bidder in order for the bidder to proceed to the financial evaluation stage.”[Emphasis added].

116. From the above observation and finding by the Review Board’s decision of 1st December 2016, no doubt, there was no technical evaluation and or scoring of the bidders and therefore the question is whether the Review Board had the power to reevaluate the bids and award the tender to the interested party, having observed that the tender documents were devoid of customization.

117. The answer to the above question is in the negative. The powers of the Review Board under Section 173 of the Act are not absolute and neither do they include carrying out a technical evaluation and scoring of a bidder to make sure that it qualifies for financial evaluation for purposes of awarding a tender which was from the onset too fatally defective and therefor void ab initio.

118. On the said page 17 of its decision, the Review Board agreed with the interested party’s ground of its request that the Procuring Entity tender document lacked a criteria for technical and financial evaluation of the bids and called for termination of the tender and commencement of a new procurement process.

119. The Review Board stated:

“ It may be as well be that the tender document lacked a criteria for technical and financial evaluation of the bids but the Board’s view is that it is too late in the day to raise that issue for the singular reason that the process has run its course and letters of notification have been issue to both the successful and unsuccessful bidders who participated in the process without a complaint concerning the architecture of the document.

120. At page 23 the Review Board nonetheless observes that “there appeared to have been lack of expert guidance of an experienced procurement professional in the entire process starting with the preparation of the tender document through to the entire evaluation process. That the evidently cavalier attitude of the Procuring Entity erodes confidence in public procurement and ought not to go unpunished.”

121. From the above serious observations by the Review Board, clearly, albeit the Board had earlier on justified its decision of not finding the tender documents to be defective, it acknowledges that the entire procurement process was unprofessional and erodes public confidence in public procurement processes.

122. Surprisingly, the Review Board went ahead to consider the financial evaluation without any scores for technical evaluation and based on the fact that the interested party submitted the lowest priced bid, the Review Board awarded the tender to the interested party.

123. In my humble view, there is no difference between the Review Board and the Procuring Entity in their approach to this whole issue. The Review Board did not just substitute its decision for the decision of the Procuring Entity. It went ahead to place itself in the position of the evaluation committee, ensured that the interested party had qualified in technical evaluation where the evaluation committee was unable to find such qualification and awarded the tender as if the Review Board itself was the tender committee.

124. In Republic vs Public Procurement Administrative and Review Board & 2 Others Exparte CPNC North East Refining and Chemical Engineering Company Ltd/ Pride Enterprises, the court stated:

“ The Board may have indeed found a shortcoming in the definition of an EOM provided by the Procuring Entity. We are of the view that in order to achieve a transparent system of procurement as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language in the tender documents and not leave important matters for speculation and conjunctive as was the case in this matter……if indeed the Review Board had found that there was a problem with the tender document, it ought to have asked the Procuring Entity to retender. You cannot use a faulty tender document to award a tender. The Review Board exceeded its authority by purporting to read its own words in the tender document. If the tender document was defective, then the only order that was available to the Board was to direct the Procuring Entity to commence the tender process afresh.”

125. Iam in agreement with the above decision and add that although in this case the Review Board claims that the issue of defective tender documents was a foregone conclusion in JR 83/2016, I disagree to the extent that it is the same defective tender documents devoid of technical criteria and financial criteria that was before the Procuring Entity during reevaluation of the tender on orders of the Review Board in the first request for review which the procuring entity was being penalized for failing to adhere to.

126. From the above observations, clearly, albeit the Review Board had earlier on justified its decision of not finding the tender documents to be defective and therefore the Review Board had the power at that stage to refer the tender back to the Procuring Entity with directions to amend the tender documents to cure such vagueness, the Review Board did not. Accordingly, I find that it was unlawful for the Review Board to purport to interfere with the tender after finding that the tender document lacked technical evaluation criteria duly customized, and yet proceeded to award the tender to the interested party herein.

127. In my view, no reasonable, rational Review Board could have made such an erroneous decision. I find the Review Board’s decision of 1st December, 2016 to be Wednesbury unreasonable.

128. Albeit the Review Board argued that its decision was soundly grounded on Section 173 of the Act, my humble view is that the power of the Board to substitute its decision with that of the Procuring Entity is limited to what the Procuring Entity was lawfully permitted to undertake both substantively and procedurally.

129. In my humble view, the Review Board having in essence faulted the entire procurement process conducted by the Procuring Entity, upon setting aside/ annulling the award that was initially made in favour of the exparte applicant, the Review Board should have ordered for amendment to the tender documents and a reevaluation of those bids based on the amended tender documents. The Review Board could not properly take over the role of the Procuring Entity’s Evaluation Committee to evaluate the bids and subsequently make an award in favour of the interested party.

130. This is a case where this court finds that the Review Board operated outside its jurisdiction by expanding the jurisdiction through administrative craft or innovation by interpreting the tender defective document in favour of the interested party.

131. This is not acceptable ( see Republic vs Public Procurement Administrative and Review Board and 2 Others exparte Numerical Machining Complex Ltd [2016] e KLR.

132. In addition, Regulation 50 of the Public Procurement and Disposal Regulations, 2006 states:

“Upon completion of the Technical Evaluation under Regulation 49, the Evaluation committee shall conduct a financial evaluation and comparison to determine the evaluated price of each tender”

133. It follows that without undertaking a technical evaluation, as was in this case, the Review Board could not undertake a financial bid or even direct the Procuring Entity to undertake a financial bid in the absence of a technical evaluation of the bids.

134. A clarification of the tender documents can only be sought where there is conflicting information in the tender documents and not where there is not criteria or at all customized for the particular tender.

135. The other important question relates to the Review Board’s decision to recall its decision in No. 83/2016 on costs and in making an order condemning the Procuring Entity to pay costs to the interested party.

136. In my humble view, the Review Board having ordered in Review Case No. 83/2016 that each party bear their own costs could not on its own motion review its earlier decision and order for payment of costs.

137. The Review Board in doing so sat on appeal of its own decision. Albeit the Review Board was unhappy with the conduct of the Procuring Entity in the whole procurement process and so is this court, the Review Board could not punish the Procuring Entity in the subsequent Review Application by slapping it with costs which had not been awarded in the earlier case. There was no application for review of the order on costs in case No 83/2016 and therefore this court finds that it was unreasonable and irrational for the Review Board to recall its orders on costs in a matter which had been concluded.

136. The exparte applicant urged this court to prohibit the 2nd respondent Procuring Entity from acting upon the decision made by the 1st respondent on 1st December 2016 and or signing any contract with any person or entity other than the applicant in respect to the tender in question.

139. This court having found that the decision made by the Review Board on 1st December 2016 is unsustainable, the appropriate remedy is certiorari. And as there is nothing left to be prohibited since the purported contract signed between the Procuring Entity and interested party has been found to be unlawful, null and void, nothing is left to be prohibited.

140. Furthermore the prayer for prohibition has a veiled prayer for mandamus in the second part, urging this court to direct signing of a contract with the applicant in respect of the subject tender.

141. Having found that the entire procurement process was a sham, I would not sanitize an illegal process. I decline to grant prohibition which is coupled with the veiled mandamus which latter, nonetheless is not sought in these proceedings, and even if it was, it is not available to the exparte applicant as there can be no duty to sign a contract which is founded on defective tender documents and tainted with material illegalities.

142. In the end, I issue an order of Certiorari removing to this court for the purposes of being quashed the decision of the Public Procurement Administrative Review Board made on the 1st December, 2016 in Application No. 94/2016 of 10th November 2016.

143. The prayer for prohibition veiled as mandamus is declined.

144. The applicant is at liberty to retender afresh, in accordance with the law as espoused in the Act and 2006 Regulations.

145. I order that each party bear their own costs of these proceeding, having quashed the decision of the Review Board.

Dated, signed and delivered in open court at Nairobi this 7th day of November, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Omino h/b for Mr Masika for the exparte applicant

Mr Masese for the Interested Party

N/A for the Respondents