[2022] KEHC 9838 (KLR)

Republic v Public Procurement Administrative Review Board; Kenya Power & Lighting Company PLC & 2 others (Interested Party); Pan African Transformers & Switchgears Limited & 2 others (Exparte) (Judicial Review Application E076 of 2022) [2022] KEHC 9838 (KLR) (Judicial Review) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9838 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E076 of 2022

J Ngaah, J

July 6, 2022

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

Respondent

and

Kenya Power & Lighting Company PLC

Interested Party

Nairobi Transformer Manufactures (E.A) Co. Limited

Interested Party

Empower Transformers Limited

Interested Party

and

Pan African Transformers & Switchgears Limited

Exparte

Yocean (Group) Limited

Exparte

Mahashakti Kenya Limited

Exparte

Judgment

Before court is the applicant’s motion dated 26 May 2022 brought under Order 53 Rule 3(1) of the Civil Procedure Rules 2010. It seeks the judicial review orders of certiorari, mandamus and prohibition. The applicant also seeks for a declaration order. The prayers for these orders have been framed in the motion as follows:1. An order of certiorari be and is hereby issued to remove to this Court for purposes of quashing the decision of the Public Procurement Administrative Review Board made on 13th May 2022 in respect of the Review Application No.35 of 2022 - Pan African Transformers & Switchgears Limited & 4 Others vs. Managing Director & Chief Executive Officer, Kenya Power & Lighting Company Plc & Another regarding Tender No. KP1/9A.3/OT/028/21-22 for the Supply of Distribution of Transformers (Manufacturers Only)2. An order of mandamus be and is hereby issued to the 1st Interested Party to issue a Tender for the Supply of Distribution of Transformers (Local Manufacturers Only) in strict compliance with the provisions of Articles 10 and 227 of the Constitution, and the Public Procurement and Asset Disposal Act, 2015. 3.Declaration that the decision by the Respondent made on 13th May 2022 was made in violation of provisions of Articles 10 and 227 of the Constitution, and the Public Procurement and Asset Disposal Act, 2015. 4.An order of prohibition be and is hereby issued prohibiting and/or restraining the 1st Interested Party from executing and/or undertaking any action in execution of Tender No. KP1/9A.3/OT/028/21-22 for the Supply of Distribution of Transformers (Manufacturers Only)5. Costs be provided for.” 2. The motion is based the grounds in the statutory statement dated 25 May 2022 verified by the affidavits of Boby Thomas, Yang Yu and Sachin Singhal sworn on even date.

3. According to the applicants, Kenya Power and Lighting Company Limited, the 1st interested party in these proceedings, and which I will henceforth refer to as ‘Kenya Power’ or ‘the procuring entity’, invited bids from manufacturers for the supply and distribution of transformers. The invitation was vide an open tender dated 11 March 2022.

5. The tender document was uploaded on the Kenya Power’s website. Through several addenda, the tender document was amended to, among other things, allow joint venture bids; open up the limitations of type test certificates and; extend the deadline for submission of tenders.

6. The applicants depose that the tender was open to what they described as ‘foreign tenderers’ without the procuring entity disclosing the reasons for doing so yet, previously, more particularly from 2017 to 2020, Kenya Power tenders for supply and distribution of transformers have been competitively advertised and awarded to the applicants, the 2nd and 3rd interested parties. It is the applicants’ case that Kenya Power’s decision in effect gave an unfair advantage to foreign manufacturers over the local ones.

7. The applicant’s deposed further that among the requirements in the tender document was a requirement that a tenderer should have a minimum of 10 years’ experience or submit at least one completion certificate of a previous tender with Kenya Power. The applicant viewed this requirement as designed to lock out newly admitted manufacturers without any due regard to their capacity and expertise.

8. The requirement, in the applicants’ view, is discriminatory in nature and violates Article 10 of the Constitution of Kenya on national values and principles.

9. According to the applicants, under section 89 of the Public Procurement and Asset Disposal Act, No. 33 of 2015(hereinafter “the Act”) Kenya Power has the obligation to demonstrate effective competition for the supply of the procured goods and that local suppliers ought to be given priority before resorting to international bidders.

10. The 1st applicant has invested over 500 Million Kenya Shillings to upgrade its capacity to manufacture transformers and employed more than 100 people in compliance with Kenya Power’s technical specifications for supply of tenders expecting to continue supplying transformers to Kenya Power as it has done in the past. It is bound to lose this investment if the tender is opened to international bidders.

11. In opening up the tender to foreign tenderers, the applicants contend, Kenya Power has violated Section 3 of the Act, the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter, the Regulations), the Kenya Government Strategy Policy on Buy Kenya Build Kenya and Kenya Government Big 4 Agenda. All these instruments encourage and support local industry.

12. The applicants have also deposed that the Tender Document violates Regulation 19(1) of the Public Procurement and Disposal (Preference and Reservations) Regulations, 2011 as amended by Regulation 6 of the Public Procurement and Disposal (Preference and Reservations) Amendment Regulations, 2013, which require a procuring entity to unbundle works with a view of encouraging participation of citizens and local contractors to promote the local industry. It has been urged that Kenya Power has, instead, unbundled the works in seven ‘impracticable and complex’ lots and thereby failed to take these provisions into consideration.

13. Again, it has been claimed by the applicants that in breach of Section 155(5) of the Act and Regulation 144(4) of the Regulations, Kenya Power has never prepared a report detailing its inability to give preferences to the local manufacturers. Neither has it been granted a waiver by the National Treasury as is required by the Regulations.

14. Other requirements such as technical specifications for oil and Surge arresters are alleged to have been uploaded four working days before the tender closure leaving the tenderers without reasonable time to comply.

15. It is the applicants’ case that if the procurement process is allowed to proceed and the tender awarded, the applicants will incur loss and damage. There will also be loss of jobs and the market will be flooded with imported transformers.

16. The applicants believe that the tender document violates Article 227 of the Constitution and section 3 of the Act in that it falls short of meeting the requirement of fairness, equity, transparency, competitiveness and effectiveness.

17. The applicants have also contested the technical specifications of the transformers to be supplied with specific reference to Kenya Power’s preference of copper to aluminum because, in their view, copper is more prone to vandalism and theft than aluminum; the failure rate of copper transformers is higher than aluminium transformers; and that the price of copper winding transformers is 40-45% higher than that of aluminum transformers.

18. Kenya Power ought not to have restricted the tenderers to copper material yet the benefits of using aluminum winding material are more than those of the copper material and, in any event, Kenya does not produce copper or aluminum.

19. As far as the requirement of the Type Test Certificates or Reports is concerned, the applicants urged that certificates over 5 years old are unlikely to ensure design compliance to the reference standards. Also, the introduction of requirement of different test certificate for single and three phase transformers should have first been discussed with the stake holders before implementation. The existing manufacturers, it has been urged, should have been given a grace period of 12 months to comply with this requirement.

20. The applicant’s lodged a request for review before the respondent being Review Application No.35 of 2022 - Pan African Transformers & Switchgears Limited & 4 Others vs. Managing Director & Chief Executive Officer, basically challenging the procurement process in general and the tender document, in particular.

21. The Respondent delivered its decision on 13 May 2022 according to which it extended the tender closing period with a further 14 days.

22. The applicants contend that the respondent’s decision is tainted with illegality; it is allegedly based on grave misapprehension of the law and misdirection on facts. It is also impeached because it is said to amount to abuse of power. Kenya Power is alleged to have made considerations based on irrelevant facts and failed to consider relevant facts.

23. According to the applicants, the decision was based on alleged confidential documents submitted to the respondent by the 1st Interested Party pursuant to Section 67 (3) (e) of the Act. Since the applicants were not privy to the said documents, it is urged that the applicants were condemned unheard.

24. The Respondent is also alleged to have misapprehended the nature of the dispute. According to the applicants, the nature of their dispute was not on the method of procurement; it was that local manufacturers be given first priority before the tender can be opened for international bidders.

25. The respondent filed grounds of opposition dated 15 June 2022 opposing the motion. According to the respondent the applicant’s motion is essentially a review of the merits of the decision of the respondent and that for all intents and purposes it seeks to invoke the appellate jurisdiction of this Honourable Court although it is camouflaged as a judicial review application. The learned counsel for the respondent invoked the decision in Republic versus Kenya Revenue Authority ex parte Yaya Towers Limited (2008) eKLR for the proposition that judicial review is concerned, not with reviewing the merits of the decision, but the decision making process.

26. The respondent also adds that the respondent’s decision was consistent with the procuring rules and regulations. The applicants were given a fair hearing and before coming to its decision the respondent considered the submissions and evidence provided by all the parties in the application for review.

27. Contrary to the applicant’s arguments, it was urged that a directive that the respondent prepares another tender document restricted to local manufacturers would violate Article 227 of the Constitution to the extent that it would lock out potential foreign manufacturers contrary to the principles of fairness, transparency, equity ability and competitiveness.

28. Peter Muchori swore a replying affidavit on behalf of Kenya Power. The latter defended the 1st respondent’s decision as being fair, lawful, sound and reasonable, having taken into account all the relevant facts and the law.

29. According to Kenya power the tender in question which it described as ‘Tender Number KPI/9A.3/OT/028/21-22 for Supply of Distribution Transformers (Manufacturers only)’ was advertised on My-Gov publication as well as the People’s Daily on 8 March 2022.

30. The request for review application number 35 of 2022 was filed by the applicants and the 2nd and 3rd interested parties challenging the provisions and requirements for qualifications as contained in the tender document as well as the choice of procurement method adopted by the 1st interested party.

31. When the respondent delivered its decision, it held, inter alia, that Kenya Power’s tender document provided for an application of margin of preference in favour of local and citizen contractors and it also upheld the principle of promotion of local industry and promotion of citizen contractors. Accordingly, it was held that the tender document does not violate the law and neither does it technically lock out local manufacturers.

32. On the question of submission of confidential documents, it was deposed that that issue is covered by section 67 (3) (e) of the Act and therefore there was nothing wrong in Kenya Power obtaining the documents.

33. It was further deposed that the tender in issue is an open tender inviting bids from any and all interested eligible tenderers for supply of distribution transformers. Section 91 one of the Act recognises open tendering as the preferred procurement method for procurement of goods works and services.

34. Further, Kenya Power denied that the tender document violates the principle of legality under Article 10 of the Constitution but rather it is a tender document which is open to the public and has been crafted to enable the public to obtain transformers of merchantable quality, reliable and fit for purpose.

35. Kenya Power further contented that it has fully complied with the provisions of section 89 of the Act including, but not limited to requirements under the Kenyan law on international standards or standards widely used in international trade.

36. As far as the question of local bidders is concerned, it was deposed that Kenya Power’s tender document makes it a mandatory requirement for any prospective foreign bidder to provide evidence of 40% local content. This is in tandem with section 157 (8) (b) of the Act and Regulation 144 (3) (f) of the Regulations. As a matter of fact, addendum number 3 in the tender document provides for application of 20% margin of preference of the evaluated price for Kenyan manufacturers and 10% margin for joint ventures between a local and foreign manufacturer.

37. Transformers, according to Kenya Power, are specialised goods and do not fall under the category of items wholly mined or produced in Kenya and therefore section 155 (5) of the Act would not be applicable to the tender in question. In any event, there is currently no local manufacturer with the capacity of wholly manufacturing a transformer. Also, transformers are highly technical and have specialised equipment whose performance must be tested for the period specified in the technical specifications in the Kenya Power’s tender document.

38. With specific reference to technical specifications for oil and surge arresters, the specifications were uploaded in the Kenya Power’s tendering portal on 20 April 2022 and the closing date extended to 29th of April 2022 in compliance with regulation 83 of the Regulations; thus, a further 14 days’ extension was granted.

39. It has also been urged on behalf of Kenya Power, that being an open tender, the applicants are to participate either individually or as joint ventures. In any event, all the tenders will be subjected to the evaluation criteria set out in the tender document.

40. On the question of sourcing transformers from local manufacturers, Kenya Power’s case is that before the year 2017, it sourced transformers from over 20 manufacturers globally. Locally based manufacturers were introduced to Kenya Power in the year 2017. Currently, it has contracts for supply of transformers with 6 Kenyan based manufacturers of which only 3 suppliers have successfully honoured the terms of the contract while the other 3 have breached their contractual obligations leading to a shortage of transformers.

41. Kenya Power dismissed as speculative the allegations that the applicants will suffer loss and damage or that the imported transformers will flood the local market.

42. It is also urged that the supplier performance evaluation and submission of reference letters or completion certificate are mandatory requirements for all technical items procured by the Kenya Power and that this requirement is not discriminatory as alleged by the applicants. All that Kenya Power is interested in is to ensure that the public have a reliable source of power supply.

43. On the question of unbundling the tender, Kenya Power has urged that the tender document provides for 7 lots based on size and that no bidder will be awarded more than one lot. Therefore, the allegation that one bidder will be awarded all lots are far-fetched, unrealistic and not factual.

44. With respect to preference to copper as a winding material it was deposed that copper has a better tensile strength and melting point than aluminium. According to Kenya Power, transformers with aluminium windings are bigger and heavier and hence they pose challenges of installation in existing structures. Contrary to the applicants’ suggestions, there is also no evidence that vandalism of transformers has reduced with the utilisation of aluminium windings.

45. Regarding the removal of the requirement of type test certificates or reports being not more than 5 years, it was deposed that type certificates are to ensure that the designs of the equipment on offer comply with the reference standards in the tender document. The introduction of requirement of different type tests for single phase and 3 phase transformers was to ensure compliance with the specifications and confirm that transformers are fit for purpose.

46. The opening up of the tender to foreign manufacturers is to facilitate competition and to ensure that the respondents procure the best transformers which are fit for purpose, reliable, less prone to breakdowns, cost effective and safe for public consumption.

47. Kenya Power contends that it is unreasonable for the applicants to arm-twist it to bow to their own specifications. It has added that all bidders will be bound by the terms of the contract that will eventually be executed between the Kenya Power and the successful bidder at the end of the procurement process.

48. Kenya Power also reiterated that the requirements in the tender document are reasonable, fair and crafted to competitively procure standard transformers which are fit for the Kenya Power distribution network.

49. I have considered the pleadings, the affidavits and the submissions of the respective parties.

50. It is easily noticeable that a substantial part of the applicants’ application and submissions made in support of the application is made up of what the applicants think are deficiencies in the subject tender and in particular, the tender requirements stipulated in the tender document. One has to sift through what has been flagged out as ‘the grounds upon which the reliefs are sought’ in the statutory statement in order to gather the grounds of judicial review. This ought not to be the case because the grounds should be precise enough leaving no room for conjecture as to which of the acknowledged grounds of judicial review the applicant is relying upon in support of the application for judicial review.

51. The practice of the of throwing everything to court, so to speak, so that the court can, on its own, make out which of the grounds of judicial review an application for judicial review is made has not only been deprecated as a bad practice which does not endear an applicant to the court but it is also a practice that may prove fatal to the application. While reiterating the importance of stating grounds for judicial review in concise and precise terms Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34. 1 states as follows:The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”

52. The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.

53. The applicants’ application would have fallen for this omission but of the nineteen paragraphs that make up the ‘grounds’ in the statutory statement, I notice that they have made reference to the ground of irrationality in paragraph 13, illegality and procedural impropriety in paragraph 18 (c) (i) and (d).

54. These grounds of judicial review were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:"My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

55. The grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis; he acknowledged that it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.

56. These grounds are, ordinarily, the entry point through which a judicial review court may disturb a tribunal’s decision; the court will intervene if any, some or all of these grounds are demonstrated to exist. It is in this light that I proceed to examine the applicants’ application.

57. On what I suppose is the ground of illegality, the respondent is alleged to have misapprehended the law and arrived at the wrong decision. The provisions alleged to have been misapprehended are, inter alia, sections 3, 67, 89, 155(5) of the Act and regulations 6 and 19(1) of the Public Procurement and Disposal (Preference and Reservations) Amendment Regulations, 2013 and regulation 144(4) of the Public Procurement and Disposal Regulations 2020. Other provisions of the law alleged to have been violated are Articles 10 and 227 of the Constitution.

58. The applicants’ position on these provisions as can be deciphered in the grounds of objection are as follows:2. "The impugned decision is based on grave misapprehension of law and misunderstanding of facts as the Respondent failed to note that opening up the Tender to foreign tenderers, the 1st Interested Party violated the principle of promotion of local industry under Section 3 of the Public Procurement and Assets Disposal Act and the Public Procurement and Asset Disposal Regulations 2020, the Kenya Government Strategy policy on Buy Kenya, Build Kenya and Kenya Government Big 4 Agenda and Article 227 of the Constitution.3. The decision of the Respondent was based on alleged confidential documents submitted to the Respondent by the 1st Interested Party pursuant to Section 67 (3) (e) of the Act which the Applicants were not privy to. The Applicants were thus condemned unheard as they were not availed the said report to make representations on. The decision was thus tainted with illegality and flies on the face of constitution and against rules of natural justice.4. The Respondent abdicated its duty by failing to make a finding on Section 155(5) of the Public Procurement and Asset Disposal Act and Regulation 144 (4) of The Public Procurement and Assets Disposal Regulations 2020 as the 1st Interested Party never prepared a Report detailing its inability to give preferences to the Local Manufacturers nor has the 1st Interested Party been Granted a Waiver of the same by the National Treasury as is required by the regulations. The Respondent’s impugned decision is thus illegal, in violation of the law, irrational and null and void and ought to be quashed to protect the sanctity of Laws of Kenya.5. The said provision of Section 155(5) of the Public Procurement and Asset Disposal Act mandates that the local manufacturers shall be given a preference by public procurement entities and where the items cannot be procured locally, the accounting officer is directed by law to prepare evidence of inability to procure locally manufacture materials. The 1st Interested Party thus opened to foreigners to make applications for a tender which has always been closed to international bidders without demonstrating the inability of the local manufacturers and contractors to meet the requirements of the tenders.6. The impugned decision misapprehends the law in particular the provisions of Section 89 of the PPDA a where the procurement pertains to International tendering the same shall also make consideration of Section 155 of the Act as pertains to local/citizen contracts. Therefore, in accordance to the provisions of the law, local contractors cannot be locked out of any procurement process in favour of international tendering without due consideration of the law.7. The Respondent misapprehended the nature of the dispute before it thus made a decision on irrelevant considerations. The nature of the dispute was not on the method of procurement. The Applicant’s claim before the Respondent was that local manufacturers be given first priority before the tender can be opened for international bidders in line with Section 3 of the Public Procurement and Assets Disposal Act and the Public Procurement and Asset Disposal Regulations 2020, the Kenya Government Strategy policy on Buy Kenya, Build Kenya and Kenya Government Big 4 Agenda and Article 227 of the Constitution.15. The Respondent thus violated the provisions of Article 47 of the Constitution of Kenya, 2010 as read with Sections 7(2)(a)(iv), (c), (d), (e), (f), (h), (i)(iii) & (iv), (j), (k), (n), and (o) of the Fair Administrative Action Act, 2015 by abusing its discretion by failing to annul Tender No. KPI/PA.3/OT/028/21-22 for the Supply of Distribution of Transformers (Manufacturers Only) and order the 1st Interested Party to prepare another Tender document in strict compliance with the provisions of Article 10 and 227 of the Constitution and the Public Procurement and Asset Disposal Act and have the same restricted to local manufactures as previously done.”

59. I have carefully read the respondent’s decision and in particular, the 1st respondents’ position on each of the issues raised by the applicants.

60. On the question of the confidential documents said to have been received in confidentiality by the respondent and to which the applicants claim were not accessible, the respondent noted that it had received the documents pursuant to section 67(3)(e) of the Act; that provision of the law states as follows:67. Confidentiality(1)During or after procurement proceedings and subject to subsection (3), no procuring entity and no employee or agent of the procuring entity or member of a board, commission or committee of the procuring entity shall disclose the following —(a)information relating to a procurement whose disclosure would impede law enforcement or whose disclosure would not be in the public interest;(b)information relating to a procurement whose disclosure would prejudice legitimate commercial interests, intellectual property rights or inhibit fair competition;(c)information relating to the evaluation, comparison or clarification of tenders, proposals or quotations; or(d)the contents of tenders, proposals or quotations.(2)For the purposes of subsection (1) an employee or agent or member of a board, commission or committee of the procuring entity shall sign a confidentiality declaration form as prescribed.(3)This section does not prevent the disclosure of information if any of the following apply—(a)the disclosure is to an authorized employee or agent of the procuring entity or a member of a board or committee of the procuring entity involved in the procurement proceedings;(b)the disclosure is for the purpose of law enforcement;(c)the disclosure is for the purpose of a review under Part XV or requirements under Part IV of this Act ;(d)the disclosure is pursuant to a court order; or(e)the disclosure is made to the Authority or Review Board under this Act.(4)Notwithstanding the provisions of subsection (3), the disclosure to an applicant seeking a review under Part XV shall constitute only the summary referred to in section 67 (2)(d)(iii).(5)Any person who contravenes the provisions of this section commits an offence as stipulated in section 176(1)(f) and shall be debarred and prohibited to work for a government entity or where the government holds shares, for a period of ten years. (Emphasis added).

61. This provision of the law, more or less, speaks for itself. For our purposes, it is quite clear that certain information to which only the procuring entity has access may not be disclosed to any other person including tenderers but can be disclosed to the respondent. The applicants’ argument that they were entitled to the confidential information as much as the respondent is clearly contrary to the provisions of the law. It follows that if anybody has misapprehended the extent of the respondent’s sphere of authority with respect to accessibility to confidential documents, it is the applicants and not the respondent.

62. On the opening of the tender to international bidders instead of restricting it to local tenderers, the respondent captured the applicants’ case as follows:"We understand the applicant’s case to be, that tenders similar to the subject tender were in the past and as a matter of custom a preserve of and restricted to participation by, and awarded to, local manufacturers. However, the respondents have now changed such custom and opened up the subject tender to foreign manufacturers using an open tendering method. The applicant is aggrieved by this action thus alleges violation of the principle of legality by the respondents for failure to disclose the reason for such action, explanation or reasoning thereto. According to the applicant, the principle of legality requires the respondents to do what the law empowers them to do for there must be a rational connection between a decision taken and the purpose for which such a decision is taken but the respondents have instead opened up the subject tender to participation by foreign manufacturers instead of restricting the same to participation by local manufacturers.”

63. This is the same argument that the applicants have carried along in these proceedings. I will return to this question in due course but for now I am concerned about the respondent’s answer to the question raised by the applicant’s on the opening of the tender to international bidders.

64. The respondent addressed this issue as follows:"We note the real bone of contention is the method of procurement. The applicant wants the subject tender to be restricted to participation by eligible local manufacturers instead of it being an open tender for any eligible manufacturer whether local or foreign to participate in.”

65. The respondent went further to invoke section 92 (a) and (d) of the Act according to which both open tender and restricted tender are recognised as procurement methods which a procuring entity may employ. It concluded that if it was to allow the applicant’s application and direct the procuring entity to employ one particular mode of procurement rather than the other it will be infringing section 167 (4) (a) of the Act which excludes choice of procurement method from the subject of review under section 167(1). That section reads as follows:167. Request for a review(1)Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.(2)A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract.(3)A request for review shall be heard and determined in an open forum unless the matter at hand is likely to compromise national security or the review procedure.(4)The following matters shall not be subject to the review of procurement proceedings under subsection (1)—(a)the choice of a procurement method;(b)a termination of a procurement or asset disposal proceedings in accordance with section 62 of this Act; and(c)where a contract is signed in accordance with section 135 of this Act.(Emphasis added).

66. The respondent therefore concluded that the extent that the application or review sought to have the procurement method changed from open tender method to one of restricted tendering, it failed for want of jurisdiction. In other words, the respondent had been deprived of jurisdiction by section 167(4)(a) of the Act.

67. The applicants argue that the respondent misapprehended this provision of the law because the nature of its case was not so much about the procurement method but was all about the preference to be given to local manufacturers. This is what the applicant’s stated in paragraph 7 of the grounds for judicial review in the statutory statement:7. The Respondent misapprehended the nature of the dispute before it thus made a decision on irrelevant considerations. The nature of the dispute was not on the method of procurement. The Applicant’s claim before the Respondent was that local manufacturers be given first priority before the tender can be opened for international bidders in line with Section 3 of the Public Procurement and Assets Disposal Act and the Public Procurement and Asset Disposal Regulations 2020, the Kenya Government Strategy policy on Buy Kenya, Build Kenya and Kenya Government Big 4 Agenda and Article 227 of the Constitution.

68. When the applicants state that local manufacturers should be “given first priority before the tender can be opened for international bidders” no other interpretation can be given to such a statement than the international bidders should be locked out at some stage in the procurement process. And if that is the case, the applicants were effectively asking the respondent to order Kenya Power to employ a restricted tender rather than an open one. Prayer (c) of the applicants’ application before the respondent removes any doubt that this was the applicants’ intention all along. That prayer reads as follows:(c)"an order directing the 1st respondent to prepare another tender document in strict compliance with the provisions of Articles 10 and 227 of the Constitution of Kenya, and the Public Procurement and Asset Disposal Act, and restricted to local manufacturers as previously done upon removal of the offending clauses.”

69. With this kind of prayer, I find it rather baffling that the applicants can be heard to say that the nature of their case was not about the procurement method. Of course it was and it is clear that they preferred one procurement method to the other. It does not matter that they invoked Articles 10 and 227 of the Constitution in that prayer; their prayer is clearly inconsistent with those provisions of the Constitution and, as earlier noted, it is also inconsistent with section 167(4) (a) of the Act.

70. On the question of margin of preference, the respondent addressed itself to the section 3(i) and (j) of the Act and more particularly on the allegation that the tender document was couched in such terms as to lock out local manufacturers in violation of the principle of promotion of local industry and local contractors.

71. Upon considering the allegations, the respondent came to the conclusion that there was no proof that section 89 of the Act had been violated. The respondent established as a fact that the tender document provided for application of a margin of preference and also allowed joint ventures to participate in the subject tender.

72. On the possibility that a tenderer could be awarded all the seven lots in the subject tender, the respondent established that it was not true that one tenderer could be awarded all the seven lots. This was clear from the tender document which expressly barred any one tenderer from being allocated more than one lot.

73. On the question of specifications and technical requirements the respondent considered section 60(3) of its decision and came to the conclusion that:"…the applicants cannot dictate the specific requirements technical or otherwise to be set in the subject tender because doing so will be akin to a student setting his/her own exam. The respondents are best suited and do understand the need of the 2nd// respondents (sic) and the 1st respondent is better placed to prepare the specific requirements for the subject tender.”

74. Regarding the issue of specifications for oil signage arresters being uploaded 4 days before the closure of the tender and which did not give the tenderers reasonable time to comply and meet the requirement, the respondent held that section 75(1) as read with section 75(4) of the Act allowed the respondents to amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender. In such a case where the tender document is amended, if the available remainder of the time is less than a third of the time allowed for preparation of the tenders, the procuring entity ought to extend the deadline as necessary to allow the amendment of the tender to be taken into account in the preparation of the amendment of tenders. It established that the time allowed for preparation of the tenders was 27 days and a third of that time was 9 days. Accordingly, the latest addendum should have been at least 9 days before the closing date. It noted that the respondents admitted having uploaded the technical specifications for oil and surge arresters 6 days before the closure date which was 3 days short of the required time. This, according to the respondent, was contrary to section 75 (5) of the Act. It is for this reason that, in its decision, the respondent directed Kenya Power to extend the tender closing date by a further 14 days from the date of its decision.

75. Apart from extending the closure date, Kenya Power was directed to proceed with the procurement process to its logical conclusion.

76. The respondent’s decision was, no doubt, consistent with section 173 of the Act which states as follows:173. Powers of Review BoardUpon completing a review, the Review Board may do any one or more of the following—(a)annul anything the accounting officer of a procuring entity has doneN in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety;(b)give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings;(c)substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;(d)order the payment of costs as between parties to the review in accordance with the scale as prescribed; and(e)order termination of the procurement process and commencement of a new procurement process.

77. I note that it has not even been suggested by the applicants that the respondent’s decision was inconsistent with this provision of the law.

78. My assessment of the applicants’ application is that as much as it is a judicial review application, it is on one hand an attack on the requirements in the tender document and, on the other hand, it is to a greater degree inviting this Honourable Court to interrogate the facts afresh and interpret the relevant provisions of the law in a way that would lead to a conclusion different from that which the respondent reached.

79. My answer to the applicants quest to challenge the technical requirements and the specifications is that it is not for a judicial review court to interrogate the technical details and specifications of any particular item or items sought to be procured and decide whether the requirements in the tender document with respect to such details are reasonable or not. Ordinarily, a judicial review court will not evaluate the evidence presented before a tribunal so as to make its own conclusions. Secondly, the court is, in any event, ill-equipped to weigh or assess the technical aspects of any particular requirement relating to goods or services that are subject to the procurement process. It is presumed, and for this reason, it is left to the procuring entity, which is ideally equipped, to prescribe the pertinent technical and specification requirements depending on, among other things, the nature, the quality and quantity of goods or services sought to be procured.

80. Unless it is clear from the tender document that the requirements are so outrageous and are designed for no purpose other than an ulterior motive, it is incumbent upon any tenderers or other prospective bidder to simply abide by those requirements and submit its tender as prescribed in the tender document.

81. Turning to the invitation to this Honourable Court to evaluate the evidence afresh and give its own interpretation to particular provisions of the law, I would agree with the Ms. Chimau the learned counsel for the respondent, that the applicants are effectively seeking to invoke the appellate jurisdiction of this Court.

82. It is trite a judicial review court cannot invoke its appellate jurisdiction in determination of a judicial review application. What’s more, a judicial review court has no jurisdiction to substitute its own opinion for that of a tribunal. It is not part of the purpose for judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question (see Lord Hailsham in Chief Constable of the North Wales Police versus Evans (1982) 1 WLR 1155 at 1160F).

83. It has also been held in R versus Entry Clearance Officer, Bombay ex p Amin (1983) 818 at 829 (B-C) per Lord Fraser that judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.

84. The same point was emphasised in Chief Constable of North Wales Police versus Evans(supra) where Lord Brightman said at page 1173F and 1174G that:"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power…Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

85. Lord Hailsham stated in the same case that:"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” At page 1161A.

86. On his part Lord Roskil said in R versus Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Businesses Ltd 1982(AC) 617 at 633C that:The court must not cross that boundary between administration whether good or bad which is lawful and what is unlawful performance of a statutory duty.

87. For the same reason that a judicial review court cannot substitute its decision for that of a tribunal on matters of law, it cannot do so also on matters of fact. On this point I would adopt the reasoning of the Court of Appeal in OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others [2017] eKLR Civil Appeal No. 28 of 2016:"Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question. See Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited (2008) Misc. Civil Appl. No. 374 of 2006. In judicial review proceedings, the mere fact that the public body’s decision was based on insufficient evidence, or on misapplication of evidence, cannot be a ground for granting judicial review remedies. Whether that decision was right or not, the affected party ought to challenge it on appeal. In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review.

88. In the final analysis, I am not satisfied that any of the grounds of judicial review has been proved so as to persuade me to exercise my discretion in favour of the applicants. To be precise, it has not been proved to my satisfaction that in coming to the impugned decision, the respondent did not understand correctly the law that regulates its decision-making power or that it failed to give effect to it. Neither am I satisfied that the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

89. It cannot also not be said with any sense of conviction that there was any lapse in propriety of the 1st respondent’s proceedings out of which arose the decision that is now the subject of this judgment. I hold that the applicants’ motion has no merits and it is hereby dismissed. I make no orders as to costs. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 6 JULY 2022NGAAH JAIRUSJUDGE