[2017] KEHC 2766 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 658 OF 2016

IN THE MATTER OF AN APPLICATION BY JEBESS FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI & PROHIBITION

AND

IN THE MATTER OF AN APPLICATION UNDER ARTICLES 1, 47,227 AND 232 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATER OF THE PUBLIC PROCUREMENT & ASSET DISPOSAL ACT, 2015

BETWEEN

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

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD ….....….....RESPONDENT

AND

NATIONAL GOVERNMENT CDFEMGWEN CONSTITUENCY….1ST INTERESTED PARTY

FEMJI ENTERPRISES LIMITED …...........................................….2ND INTERESTED PARTY

JEBESS CONTRACTORS…….…….............................................….EX-PARTE APPLICANT

JUDGMENT

1. On 10th January 2017 this court granted to the exparte applicant leave to institute Judicial Review proceedings to bring into this court and quash the decision of the Public Procurement Administrative Review Board made on 16th December 2016 but dated 16th November 2016 in request for review case No. 105/2016 allowing the request for review by Femji Enterprises Ltd the 2nd interested party in respect of Tender No. EMG. NGCDF/001/2016-2017 for proposed construction of 8 No. Classrooms and Administration Block at Kipkeibon Secondary School.

2. In the said decision, the Review Board also annulled the award of the subject tender to the exparte applicant herein by the Procuring Entity.

3. In its place the Review Board exercised its powers under Section 173 of the Public Procurement and Asset Disposal Act and substituted its decision with the decision of the Procuring Entity and awarded the subject tender to the 2nd interested party herein on account that it was the lowest evaluated tenderer and directed the Procuring Entity to issue a letter of notification of the award to the applicant -2nd interested party Femji Enterprises Limited.

4. The Review Board also awarded costs of shs 213,330 to the 2nd interested party against the procuring entity.

5. The exparte applicant also sought that upon this court quashing the decision of the Review Board, an order of mandamus do issue compelling the 1st interested party Procuring Entity (NGCDF EMGWEN Constituency) to implement the recommendations of the evaluation committee of the Procuring Entity awarding the exparte applicant the tender described above or in the alternative to order that the tender process do commence afresh in compliance with the provisions of the Public Procurement and Asset Disposal Act.

6. Further, the applicant sought orders of prohibition directed at the Procuring Entity, EMGWEN NG-CDF prohibiting it from executing a contract or any transaction in respect of the subject tender with the 2nd interested party or any other entity.

7. Finally, the exparte applicant sought for certiorari to quash the decision of the Review Board of 16th November, 2016.

8. In granting leave to apply, the court at paragraphs 28 and 49 of the ruling on leave noted that the parties advocates agreed that albeit the decision of the Review Board was made on 16th December 2016,the decision itself was dated 16th November 2016, quite erroneously. The exparte applicant’s counsel, Mr Appolo Mboya maintained that the wrong dating of the decision is fatal to the entire decision because it was deliberate and meant to deny the exparte applicant an opportunity to file an application to challenge the decision as the decision directed that the contract be signed between the Procuring Entity and the 2nd interested party in 7 days of the date on which the decision was dated.

9. It is important to note that the issue of dating of the decision of the Review Board is an issue that goes to the root of the decision as impugned, such that albeit all parties submitted and the court was persuaded that the decision was made on 16th December 2016, the correct and appropriate body that had the power to date the decision correctly is the Review Board. For avoidance of doubt, this court did not correct the date of the decision. It only acknowledged the date.

10. Throughout these proceedings, the parties relied on the decision which is dated 16th November 2016 and therefore the question, which I consider appropriate for determination is whether the erroneous dating of the impugned decision is fatal to the proceedings before the Review Board.

11. A similar issue arose in Civil Appeal No. 76/2002 KisumuO’Kubasu, W.S. Deverell and P.K. Tunoi, JJA betweenRefrigeration Contracts Ltd vs James O. Lieta [2005]eKLR.In that case, Wambilyanga J of the High Court failed to state the correct date as the date of delivery of the judgment and also did not sign the judgment on the day it was delivered .

12. The issue before the Court of Appeal was that albeit the judgment was dated and delivered on 27th May 1999, it was dated 26th May 1999 and therefore whether such judgment was judgment at all.

13. In an application for review of the judgment, the learned judge had stated:

“….. I conclude and declare that my judgment in this case was indeed delivered on 27th May 1999 but was inadvertently dated 26th May 1999 and therefore it means that the Notice of Appeal correctly stated the actual date when the judgment was delivered.”

14. The above was the clarification of the factual position as the date of delivery of judgment thus confirming that the judgment was wrongly dated. However, the learned judge neither made any finding on whether the wrongly dated judgment was a nullity as a result of what happened with regard to the dating nor did he make any reference to the lack of signature on the date of delivery. The Court of Appeal made the following observation:

“ We consider that the insertion at the end of a judgment of the wrong date as the date of delivery of judgment is an error arising from an “accidental slip” within the meaning of Section 99 of the Civil Procedure Act and therefore the learned judge could have expressly ordered the judgment to stand corrected by the substitution of the correct date for the incorrect date. He did not make any specific order. If he had done so, it would have not been possible for either party to succeed in claiming that the judgment was a nullity because of the dating error, but it would not have solved the lack of signature on the day of delivery.”

In these circumstances, we find that the judgment was a nullity, or in other words, ineffectual, as a result of both the acknowledged, but uncorrected wrong dating and the non signing of the judgment at the time it was delivered in breach of Order XX Rule 7 (1)…..”

15. The Court of Appeal in the above case was clear that only the judge who had delivered the judgment could have corrected the date and or signed the judgment and with specific reference to correction of a court’s own judgment in terms of dating, the Court of Appeal stated.

“The learned judge could have expressly ordered the judgment to stand corrected by the substitution of the correct date for the incorrect date. He did not make any such specific order.”

16. In the instant case, it is admitted that the decision of the Review Board was wrongly dated but there was no attempt by the parties or the Review Board itself to recall its decision and correcting it by substituting the incorrect date with a correct date of delivery of the decision.

17. The Court of Appeal made it clear that a judgment which is wrongly dated unless corrected is a nullity and that applying the case of Chief Kofi v Barima Kwabena Sefah [1958] ALL ER 289, it stated that a judgment, which is a nullity as a result of the judge lacking jurisdiction, while being ineffectual, can nevertheless be subject to review under rules similar to our Order 44. The privy council in that case also approved the procedure of the judgment being pronounced afresh by the same judge who lacked jurisdiction at the time he first delivered it, provided that he had jurisdiction at the time he delivered it a fresh.

18. In Palace Dry Cleaners Ltd vs Ahmed Abdi CA 265/96 the same Court of Appeal stated:

“This Appeal is against the Superior Court (Ringera J) which ruling is not dated. Such dating is required by the provisions in Order 20 Rule 3(1) as read with Order 20 Rule 7(6) . This is a mandatory requirement. In the absence of such dating this appeal is incompetent and is ordered struck out with no order as to costs.”

19. In china Jiangsu International Economic Co-operation V Edward Kings Onyancha Maina CA 193 and 194/95 unreported cited in the Refrigeration Contractors [supra] case, the Court stated;

“ These appeals are incompetent as the records do not contain copies of the ruling appealed against as required by Rule 85 (1) (a) of the Rules of this court. The document in the records of Appeal purporting to be copies of the ruling does not comply with the mandatory provisions of Order 20 (3) (1) of the Civil Procedure Rules. That document is therefore a nullity and neither party can take advantage of it. For these reasons both these appeals are struck out but with no orders as to costs.”

20. In Mohamed Omar Shunguli v Arnile Ngiama Rama CA 16/1992unreported it was stated:

“ Mr K’owade, at the opening of the hearing of the appeal, contended in limine that the judgment dated 8th June, 1990 but delivered on 14th June, 1990 and signed on both those dates. This is a breach of the mandatory provisions of Order XX (3) (1) of the Civil Procedure Rules as it does not comply with the same and is invalid.

Accordingly, the appeal before us is rendered incompetent and is hereby struck out with no order as to costs.”

21. The Court of Appeal in The Refrigerator Contractors Ltd v James O. Luta (supra) further relied on the Chief Kofi decision (supra) where it was further held;|

“……Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debitio justiciae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order and that an appeal from the order is not necessary.”

22. The Court of Appeal then concluded that:

“ We find the judgment to be a nullity and, following the Chief Kofi decision, we are of the opinion that it can and should have validity bestowed upon it by being pronounced afresh in accordance with the rules.

We therefore hereby allow the appeal with costs and set aside the superior court’s ruling delivered on 29th November 2001 and substitute therefore an order that judgment, which was signed on 19th July 2000 by Wambiliangah J in High Court CC No. 11 of 1997, be pronounced afresh, in accordance with Order XX of the Civil Procedure Rules.

For avoidable of doubt, we further declare that the previous delivery of the judgment on 27th May 1999 was not a valid pronouncement of the judgment.”

23. The above decision is on all fours with this case where the decision though delivered on 16th December 2016 is dated 16th November 2016 and the Review Board never took any steps to recall that decision for purposes of pronouncing it afresh. Neither did the beneficiaries of that order seek out the Review Board to pronounce the decision afresh and date it as appropriate.

24. I have no reason to depart from the above decision which is binding on this court and which is backed by law. And even if the respondents were to argue that the error is one of procedural technicality which I find was not as the error determined the validity of the decision impugned herein, in CIVIL APPEAL (APPLICATION) NO. 228 OF 2013, OUKO, KIAGE & J. MOHAMMED, JJ.A) BETWEEN NICHOLAS KIPTOO ARAP KORIR SALAT &INDEPENDENT ELECTORAL AND 8 OTHERS,the Court of Appeal made it clear that:

“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.

25. In this case, in the absence of any other provision of law to the contrary, the law regarding pronouncement and dating of judgments must apply, for they were not enacted in vain and as long as they still exist in our statute books they are not mere rules. Under Order 21 Rule 3(1) of the Civil Procedure Rules, a judgment pronounced by the judge who wrote it shall be dated and signed by him in open court at the time of pronouncing it and once signed, a judgment shall not afterwards be altered or added save as provided by Section 99 of the Act or on review.

26. In the same vein, Order 21 Rule 8 (1) is clear that a decree shall bear the date on which the judgment was delivered.it follows that where a decree or order is dated differently from the date of delivery of judgment or ruling, unless rectified by the same court issuing such decree or order, no other court can correct it.

27. Section 99 of the Civil Procedure Act allows the court to correct clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission, such correction may be made at any time by the court of its own motion or on application of any of the parties.

28. In this case, the Review Board delivered its decision on 16th December 2016 and signed it but dated it 16th November 2016.

29. In my view, from the decisions cited above, it is not the effect of such errors that matter. It is the validity of such a decision that is being questioned.

30. In the absence of any correction and or application before the Review Board to correct the decision dated 16th November 2016 yet pronounced on 16th December 2016, which decision is a permanent record, the decision thereof is exdebitio justiciae a nullity.

31. Therefore, as the Review Board decision was not rendered in accordance with the law, it should not surprise the parties that the entire decision is a nullity and therefore what Lord Denning stated in the case of Mcfoy v United Africa Company Ltd[1961] ALL ER 1169 at 1172, is pertinent that anything that is said to be a nullity is void ab initio and is as though it never existed. And that nothing can be done subsequently based on what is a nullity because one cannot put something on nothing and expect it to stay there. It will collapse.

32. That being the case, I find and hold that the decision of the Review Board was nothing and never existed in the sense of the law and therefore this court need not consider the merits of the Judicial Review complaint on whether or not the Review Board committed any errors of law in nullifying the award of the tender made in favour of the exparte applicant by the Procuring Entity.

33. Accordingly, I find and hold that the whole decision of the Review Board pronounced on 16th December 2016 and dated 16th November 2016 be and is hereby brought into this court for purposes of quashing and I hereby declare the said decision of the Review Board made on 16th December, 2016 but dated 16th November, 2016 a nullity and quash the same.

34. As the court has not delved into the questions of whether or not the invalid decision ought to have been made the way it was made, I decline to make any other order respecting the annulled decision and order that each of the parties bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 11th day of October, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Apollo Mboya Advocate for the Exparte Applicant

Mr Wasonga Advocate h/b for Mr Alex Masika for the 2nd Interested Party

N/A for the Respondent

N/A for the 1st Interested Party

Court Assistant: Mike