[2015] KEHC 6208 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 160 OF 2014

IN THE MATTER OF: THE PUBLIC PROCUREMENT AND DISPOSALS ACT, 2005

AND

IN THE MATTER OF: THE PUBLIC PROCUREMENT AND DISPOSALS REGULATIONS, 2006

AND

IN THE MATTER OF: REQUEST FOR PROPOSALS NO. NCC/ICT/RFP/113-2013-2014

FOR SUPPLY, INSTALLATION, CONFIGURATION, AND IMPLEMENTATION OF

DATA CENTRE AND STRUCTURED CABLING INFRASTRUCTURE

AND

IN THE MATTER OF: A DECISION BY THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW

BOARD IN APPLICATION NO.7/2014 OF 24TH MARCH 2014

AND

IN THE MATTER OF: AN APPLICATION BY SEVEN SEAS TECHNOLOGIES

LIMITED FOR ORDERS OF CERTIORARI

BETWEEN

REPUBLIC ...............................................................APPLICANT

AND

PUBLIC PROCUREMENT

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

NAIROBI CITY COUNTY...............................2ND RESPONDENT

BCX KENYA LIMITED...............................INTERESTED PARTY

EX-PARTE.................SEVEN SEAS TECHNOLOGIES LIMITED

JUDGEMENT

Introduction

1. By a Notice of Motion dated 13th May, 2014, the ex parteapplicant herein, Seven Seas Technologies Limited, seeks the following orders:

1. THAT an Order of Certiorari do issue removing to the High Court and quashing the decision of the Public Procurement Administrative Review Board made on 11th April 2014, purportedly refusing to endorse the withdrawal of the Request for Review that had been filed by BCX Kenya Limited, the Interested Party herein.

2. THAT and order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, declare the Interested Party herein, BCX Kenya Limited, to have submitted the successful proposal, and further, to annual the award to tender made by the procuring entity to Seven Seas Technologies Limited.

3. THAT an Order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, direct the procuring entity to complete the procurement and render an award as respect the tender within fifteen (15) days

4. THAT an Order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, direct the procuring entity to compete the procurement and render an award as respects the tender within fifteen (15) days from the date of the decision.

5. THAT an Order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, direct the procuring entity to extend the tender validity period and the bid bonds for such period of time as shall be required to complete the remaining stages of the procurement.

6. THAT the costs of this Application be provided for.

Ex ParteApplicant’s Case

2. The application was supported by a verifying affidavit sworn by Njeri Wachira, the Head of Legal and Corporate Affairs of the applicant on 28th April, 2014.

3. According to the deponent, on or about 3rd December 2013, the Applicant submitted its proposal in regards to the 2nd Respondent’s Request for Proposals No. NCC/ICT/RFP/113-2013-2014 for Supply, Installation, configuration, and Implementation of Data Centre and Structured Cabling Infrastructure. After evaluation by the 2nd Respondent, the ex parte Applicant was awarded the tender by the 2nd Respondent.

4. However, BCX Kenya Limited, the interested party herein filed a request for Review of the tender with the 1st Respondent on 24th March 2014 after which both the applicant and the 2nd interested party, the Procuring Entity, filed their respective responses to the Request for Review filed by the interested party. However, before the substantive Request for Review could be heard by the Board, the interested party filed a Notice of Withdrawal on 9th April 2014. Despite that when parties appeared before the 1st Respondent on 11th April 2014, the 1st Respondent refused to endorse the withdrawal and essentially compelled the Interested Party to prosecute its Request for Review when it was no longer interested in the same.

5. It was deposed that at page 4 of the decision delivered by the 1st Respondent on 22nd April 2014, the 1st Respondent made reference to their earlier decision delivered on 11th April 2014 in the following terms: “The Board noted that the decision and the order for directions was contained in a separate decision given on 11th April 2014. ..”

6. According to the applicant, once a Notice of Withdrawal is filed, the Request for Review is deemed to have been withdrawn as per the provisions of Regulation 83 of the Public Procurement and Disposal Regulations, 2006 (hereinafter referred to as “the Regulations”). It was therefore averred that once the Notice of Withdrawal was filed, the 1st Respondent did not have any jurisdiction to hear and/or make any determination arising out of Application No.7/2014 of 24th March 2014 hence it is within the powers of this Court to quash the decisions of the 1st Respondent delivered on 11th April 2014, which decision was ultra vires.

7. In the deponent’s view, if the tender which had been initially awarded to the applicant is awarded to another entity, the Applicant will suffer great financial loss occasioned by the Board delivering a decision and nullifying the tender award in favour of the Applicant when he Board had no jurisdiction for doing so.

8. To the applicant, it is within the powers of this Court to quash the entire decision of the 1st Respondent delivered on 22nd April 2014, which decision was delivered when the Board had no jurisdiction hence it is in the interests of justice that the orders sought in this application be granted.

9. Vide a further affidavit sworn on 28th April, 2014, the same deponent exhibited a copy of the decision made on 11th April, 2014.

Respondent’s Case

10. In opposition to the application the Respondent filed a replying affidavit sworn by Pauline O. Opiyo, the Respondent’s Secretary on 13th May, 2014.

11. According to her, the interested party filed a Notice of Withdrawal of Request for Review against the 2nd Respondent dated 4th April, 2014 and was received by the 1st Respondent on 9th April, 2014. However, on 9th April, 2014 the ex parte applicant filed a Notice of Preliminary Objection dated the same day based inter alia on the late filing of the Request for Review. After hearing the parties present on 11th April, 2014, the 1st Respondent delivered its ruling on 11th April, 2014 declining to make an order for withdrawal of the said Request on the ground that there was no evidence of service on all the parties to the tender.

12. It was deposed that the said decision was made within the 1st Respondent’s mandate and proceeded to hear and determine the Request which it determined based only on the provisions of the relevant law.

13. It was deposed that the ruling delivered by the Board on 22nd April, 2014 involved two requests for review, No 7 of 2014 and No.10 of 2014 which were consolidated for the purposes of hearing hence the applicant is seeking to quash two decisions of the Board nullifying the subject tender. It was however the deponent’s view that the applicant cannot seek to have the Court quash the entire ruling dated 22nd April, 2014 as there is a separate application and decision based on separate rounds.

Determinations

14. I have considered the Notice of Motion, affidavits, the written submissions and judicial authorities herein and this is the view I form of the matter.

15. The issue before me in the instant application in my view is a simple one: whether the 1st Respondent Board had the jurisdiction to proceed with the Request for Review made by the interested party after the said party had filed a Notice of Withdrawal of the same Notice.

16. Regulation 83 of the Regulations provides as follows:

83. (1) A request for review may be withdrawn at any time before or during the hearing by notice in writing to the Secretary signed by the applicant and upon such notice being received the request for review shall be deemed to have been withdrawn.

(2) When a request for review is withdrawn, the Secretary shall forthwith inform the Review Board and all parties to the review of the withdrawal.

17. As is clearly apparent from the foregoing provision, once a Notice of Withdrawal is received by the 1st Respondent’s Secretary, the request is deemed to have been withdrawn. Therefore the law itself provides for the consequences of receipt of a notice of withdrawal. The word “deem” has been interpreted by the Court in Gatete and Another vs. Kyobe SCCA No. 7 of 2005 [2008] 2 EA 135 where it was held by the Supreme Court of Uganda that:

“The word “deemed” is commonly used in legislation to create legal or statutory fiction. It is used for the purpose of assuming the existence of a fact that in reality does not exist. The word “deemed” is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would otherwise not prevail. Sometimes it is used to place beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.”

18. This position was appreciated in Prof. Peter Anyan’g Nyong’oand10 Othersvs. Attorney GeneralofKenya & Others EACJ Reference No. 1of2006[2007] 1 EA 5; [2007] 2 EA 5; [2008] 3 KLR (EP) 397 where the East African Court of Justice, citing St. Aubyn (LM) vs. AG [1951] 2 All ER 473 at 498 expressed itself as follows:

“The word “deemed” is commonly used both in principal and subsidiary legislation to create what is referred to as legal or statutory fictionand the legislature uses the word for the purpose of assuming the existence of a fact that in reality does not exist...”

19. In Regulation 83 the law used the word “deemed” in order to create the fiction that upon the Notice of Withdrawal being received, the proceedings before the 1st Respondent would in law be withdrawn although in reality no order to that effect is made.

20. In my view, it does not matter whether the notice was given by the interested party and not the applicant. The 1st Respondent’s jurisdiction is derived from the existence of a valid request for review. It cannot for example take upon itself to a review a decision of a Procuring Entity unless its jurisdiction is properly invoked. Similarly where a request has been withdrawn it cannot purport to continue to hear the request.

21. In my view where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority. In Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530it 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 and based on East African Railways Corp. vs. Anthony Sefu Dar-Es-Salaam HCCA No. 19 of 1971 [1973] EA 327, the courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it.

22. Therefore where the 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 Courts must nevertheless 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; [1976-80] 1 KLR 1090.

23. Whereas the powers of the 1st Respondent in exercising its powers of review are wide, the same can only be exercised within the framework of an existing request for review. Any attempt to exercise powers outside that ambit would in my view amount to assuming jurisdiction which it does not possess.

24. It is therefore my view that the 1st Respondent’s jurisdiction ceased on receipt of the Notice of Withdrawal by its secretary and any proceedings undertaken subsequent to the same by the 1st Respondent apart from notification of the parties under Regulation 83(2) were not only unprocedural but also without legal basis. As was held by Nyamu, J(as he then was) in Republic vs. Kajiado Lands Disputes Tribunal & Others ex parte Joyce Wambui & Another Nairobi HCMA. No. 689 Of 2001 [2006] 1 EA 318, if an award is made without jurisdiction, it is a nullity and anything out of a nullity is a nullity due to the maxim ex nihilo nihil fit – out of nothing comes nothing hence despite the irregularities the Court cannot countenance nullities under any guise since the High Court has a supervisory role to play over inferior tribunals and courts and it would not be fit to abdicate its supervisory role as it has powers to strike out nullities. Where a decision is a nullity, it is not only bad but incurably bad and there is no need for an order of the Court to set it aside, though sometimes it is convenient to have the Court declare it to be so. You cannot put something on nothing and expect it to stay there, as it will collapse. See Macfoy vs. United Africa Co. Ltd [1961] 2 All ER 1169.

25. Regulation 83 does not as it was contended by the Respondent require that the effectiveness of the notice is only after other parties are served.

26. It was however contended by the Respondent that since there were two reviews which were consolidated, to grant the orders sought would have the effect of nullifying the two reviews. With due respect this submission is not borne out by the record. In the ruling dated 11th April, 2014 which is the basis for the submission that the request for review no. 7 of 2014 was consolidated with request no. 10 of 2014, it was decided inter alia that the said requests were consolidated only for the purposes of hearing but that upon hearing thereof the Board would deliver separate decisions. In fact separate decisions were delivered.

27. It is therefore my view that the quashing of one decision does not necessarily quash the other decision.

28. It follows that the Notice of Motion dated 13th May, 2014 succeeds to the extent that the Respondent’s decision made on 22nd April 2014, in the request for review No. 7 of 2014 between BCX Kenya Limited vs. Nairobi City County and Seven Seas Technologies Limited is hereby quashed.

29. The Applicant is awarded the costs of these proceedings to be borne by the 1st Respondent.

30. It is so ordered.

Dated at Nairobi this 16th March, 2015

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr. Mwihuri for the Applicant

Cc Richard