[2024] KEHC 14759 (KLR)

Republic v Public Procurement Administrative Review Board & another; Paramax Cleaning Services Limited (Exparte Applicant); Ice Clean Care Group Limited (Interested Party) (Judicial Review E167 of 2024) [2024] KEHC 14759 (KLR) (Judicial Review) (10 September 2024) (Judgment)

Neutral citation: [2024] KEHC 14759 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E167 of 2024

JM Chigiti, J

September 10, 2024

Between

Republic

Applicant

and

The Public Procurement Administrative Review Board

1st Respondent

The Accounting Officer, Kenya Development Corporation

2nd Respondent

and

Paramax Cleaning Services Limited

Exparte Applicant

and

Ice Clean Care Group Limited

Interested Party

Judgment

1. On 13th April 2024, Kenya Development Corporation and the 2nd Respondent invited submissions of tenders in response to Tender No. ONT/KDC/008/ 23-24 for provision of cleaning, sanitary disposal, fumigation and garbage collection services at Uchumi Finance and Utalii House.

2. On 14th June, 2024 the Ex-Parte Applicant received a notification that the tender had been awarded to the Interested Party. Aggrieved by this decision, the Ex-Parte Applicant sought a debrief from the 2nd Respondent on the award criteria on the 14th June, 2024 but the same debrief was responded to by the 2nd Respondent on the 27th June, 2024 which triggered the Ex-Parte Applicant to file the request for a review on the 28th June, 2024 seeking, the following orders:a.An order annulling and setting aside the award of the tender to the interested party at the tender sum of Kshs. 17, 384, 278. 00/-.b.An order annulling and setting aside the Respondent’s declaration and/or decision declaring the Interested Party’s bid as successful.c.An order quashing the Respondent’s decision contained in the letter dated 14thJune, 2024 declaring the Interested Party’s bid as successful.d.An order directing the Respondents to reinstate and re-evaluate the Applicant’s tender at the financial evaluation stage for all lots in accordance with the directions issued by the review board.e.An order awarding costs of the request for review to the applicant.f.Any other relief that request for review deems fit to grant under the circumstances.

3. In it’s decision, The 1st Respondent made a finding that it lacked the jurisdiction over the request for review and downed its tools due to the following reasons: -“a.That the request for review was filed 42 days outside time and therefore, time barred in as much as it was challenging the award criteria used in the tender document.b.That the Ex-Parte Applicant’s advocate did not take out a practicing certificate for the year 2024 and thus he could not either publicly purport to draw up or file the request for review or appear before the Board as the Ex Parte Applicant’s advocate with the result that the request for review is incompetent and is for striking out in its entirety.”

The Applicant’s case; 4. Being dissatisfied with the foregoing, The Ex Parte Applicant filed the instant judicial review proceedings and what is before the court for determination is the substantive Notice of Motion dated 1st August 2024 wherein it is seeking;1. An order of certiorari do issue to remove to this Honourable Court and quash the decision by the Kenya Development Corporation, the findings, decision and directives of the Public Procurement Administrative Review Board contained in the decision made and dated 16th July,2024 indicating that the 2nd Respondent proceeds with tender No.ONT/KDC/008/23-24 for provision of cleaning, sanitary disposal, fumigation and garbage collection services at Uchumi, Finance and Utalii House.2. An order of prohibition restraining the Accounting Officer, Kenya Development Corporation or any person acting on their instructions from implementing the decision made by the Public Procurement Administrative Board vide the 1st respondent’s decision of 16th July, 2024. 3.An order of mandamus compelling the 1st Respondent to conduct the Applicant’s review on merit basis.4. The cost of this application be provided for.

5. The Ex parte Applicant received a Notification Award on 14th June, 2024, which indicated that the Interested Party had been awarded the tender without crucial information such as a statement of the reasons and justification that the tender of the unsuccessful tenderer to whom the letter is addressed was unsuccessful as required under the Invitation to Tender Document.

6. Having delayed to furnish the information that would form the backbone of the request for review, the question that The Ex parte applicant poses therefore would be whether the time ought to have started running on the material date of 27th June, 2024 or the date when the notification was made.

7. It argues that it was impossible for it to challenge the award process in the circumstances.

8. It further argues that when the request for review was set down for hearing, the Interested Party raised a Preliminary Objection dated 9th July, 2024 indicating that: (i) the Request for review was time barred and (ii) there was no competent Request for Review for the Board’s determination.

9. In its decision, the 1st Respondent made reference to Section 167 (1) of the Public Procurement and Disposal Act, Regulation 203 (2) (c) of the Public Procurement and Asset Disposal Regulations, 2020, Section 57 of the Interpretation of General Provisions Act and various precedents.

10. It is it’s case that pursuant to Section 167 (1) of the Public Procurement and Disposal and Regulation 203 (2) (c) of the Public Procurement and Asset Disposal Regulations 2020 any person aggrieved by the decision of the 1st Respondent is at liberty to request for a review within 14 days of The notification of award under Section 87 of the Act or the date of occurrence of the alleged breach at any stage of the procurement process or Disposal process.

11. The Applicant also states that at paragraph 80 at page 26 of the 1st respondent’s decision dated 16th July, 2024 it indicated as follows;“80. The Request for Review in as far as it challenges the award criteria is a direct challenge on the provisions of the tender document. Accordingly, the Applicant had 14 days from the date of access to the tender document and in any event not later than the tender submission deadline.”

12. According to the Applicant, the interpretation made by the 1st Respondent in relation to the 14-day timeline was misleading and unreasonable.

13. It is it’s case that Section 167 (1) of the Public Procurement and Disposal Act does not make a distinction on whether the request for review is against the award criteria or the award of the tender to the Interested Party. This therefore means that any candidate or tenderer who is aggrieved by a decision of a procuring entity is allowed to request for a review within 14 days.

14. It is further its case that the distinction made in the computation of time was unreasonable as it meant that the Applicant had to foresee the breach without getting the debrief and before even submissions are made, in essence contemplate and predict a future breach then file a review against such future breach.

15. According to the Applicant the 1st Respondent chose to interpret Section 167 (1) of the Public Procurement and Disposal Act and Regulation 203 (2) (c) of the Public Procurement and Asset Disposal Regulations, 2020 in a manner that is contradictory to the Act and Regulations, and in essence taking the role of the legislature and giving an interpretation that was contradictory to the provisions.

The 1st Respondent’s case; 16. In opposing the application, the 1st Respondent filed a replying affidavit and raised a Preliminary Objection that the entire Judicial Review proceedings should be struck out for reasons: -i.That the Judicial Review proceedings were commenced outside the 14 days’ statutory timeline stipulated under Section 175(1) of the of the Public Procurement and Asset Disposal Act No. 33 of 2015. The 1st Respondent rendered its Decision on 16th July 2024 and thus the statutory window to challenge the Decision closed on 30th July 2024. However, the Ex parte Applicant initiated the instant proceedings on 31st July 2024, which was a day after the lapse of the statutory period.ii.That the Court of Appeal in Nairobi Civil Appeal No. E039 of 2021; Aprim Consultants v Parliamentary Service Commission & Ors was emphatic that the statutory timelines under Section 175 of the Act including the filing of Judicial review proceedings were strict timelines that were incapable of extension by any Court.

17. It is its case that on 28th June 2024, the Ex parte Applicant herein filed the Request for Review Application No. 59 of 2024 challenging the decision of the 2nd Respondent and after an online hearing, the 1st Respondent delivered its decision on 16th July 2024 wherein it issued the following orders:1. The 1st Interested Party’s Notice of Preliminary Objection dated 9th July 2024 be and is hereby upheld.2. The 2nd Interested Party’s orally pleaded Notice of Preliminary Objection be and is hereby dismissed.3. The Request for Review dated 28th June 2024 be and is hereby struck out.4. The Respondent be and is hereby directed to proceed with Tender No. ONT/KDC/008 /23-24 for Provision of Cleaning, Sanitary Disposal, Fumigation and Garbage Collection Services at Uchumi, Finance and Utalii House to its logical conclusion.5. Each party shall bear its own costs in the Request for Review.

18. The 1st Respondent thereafter downed its tools and did not address the other issues it had formed for determination.

19. The instant proceedings were initiated on 31st July 2024 at 4:07 a.m. and the same are time-barred having been initiated outside the 14 days’ timeframe provided for under Section 175(1) of the Public Procurement and Asset Disposal Act.

20. The 1st Respondent’s case is that under Section 175(1) of the Act, a person aggrieved by the Decision of the 1st Respondent has a limited timeframe of 14 days within which to challenge the Decision. The Decision was delivered on 16th July 2024 and thus the statutory window for challenging the Decision closed on 30th July 2024.

21. In instituting the instant judicial review proceedings on 31stJuly 2024, the Applicant invoked this Honourable Court’s jurisdiction outside the strict statutory timelines.

22. Reliance is placed in The Court of Appeal in Nairobi Civil Appeal No. E039 of 2021; Aprim Consultants v Parliamentary Service Commission & Ors where the Court of Appeal was categorical that the strict statutory timelines under Section 175 of the Act are incapable of extension.

23. It is also the 1st Respondent’s case that a perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes.

24. The 1st respondent further states that Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and be invested with finality.

25. According to the 1st respondent jurisdiction of the High Court in public procurement judicial review proceedings is expressly limited in terms of time and is not open to expansion by that court. To step out of time is to step out of jurisdiction and any act or decision outside jurisdiction is, by application of first principles a nullity.

26. The Applicant it is argued has improperly invoked this Honourable Court’s jurisdiction as the instant judicial review proceedings are time-barred and thus bad in law.

27. Additionally, it is its case that, the Ex-parte Applicant has not identified the legal provisions under which he seeks to invoke the introduction of new evidence at this stage of the proceedings for a proper response from the parties herein, including the 1st Respondent.

28. The 1st Respondent’s case is that the Request for Review was struck out after it became apparent to the 1st Respondent that it was divested of the jurisdiction to hear and determine the same for being time-barred and being drawn up by an Advocate who did not hold a valid practicing certificate as an Advocate.

29. It is urged that Public procurement matters have strict statutory timelines for filing, hearing and determination, which timelines are also incapable of extension as already pointed out in the Aprim Case above.

30. Further that the evaluation criteria in the subject tender was well known to the Ex-parte Applicant long before the tender submission deadline.

31. The Ex-parte Applicant had 14 days from the date of access of the Tender Document to challenge the tender process, if they so desired.

32. Regulation 209 of the Regulations 2020 contemplates the filing of Preliminary Objections, which objections by their very nature dispose matters without hearing on merits. In the instant proceedings, the Interested Party filed a Preliminary Objection, whose grounds merited the striking out of the Request for Review without interrogating the merits.

33. The 1st Respondent heard all parties to the Request for Review before it to address it both on the Preliminary Objection as well as on the merits of the Request for Review.

34. It is its case that The 1st Respondent’s Decision of 16th July 2024 was reasonable, rational and lawful without overreaching the 1st Respondent’s mandate and jurisdiction.

35. The 1st Respondent acted with integrity and fairness and has not flouted any law nor acted in excess of its powers. It observed the rules of natural justice in the exercise of its statutory mandate and powers under Section 28 and Section 173 of the Public Procurement and Asset Disposal Act respectively and ensured that all parties to the Request for Review application were granted an opportunity to be heard on all issues that emerged from parties pleadings, cases, and confidential documents submitted pursuant to section 67 of the Public Procurement and Asset Disposal Act through their arguments and by considering and interrogating all the documentation and information before it that was material to the Request for Review application before completing and determining the Request for Review application.

36. It is its case in the alternative that should the Court find that the instant Application as merited, the 1st Respondent seeks that the matter be referred back to it as the public body mandated to hear procurement-related disputes as the first port of call, for determination.

The 2nd Respondent’s Case; 37. In opposing the application, The 2nd Respondent herein filed a Preliminary Objection dated 9thAugust 2024 and a Replying Affidavit sworn on 9th August 2024.

38. On 13th April 2024, Kenya Development Corporation advertised Open Tender No. ONT/KDC/008/23-24 for the Provision of Cleaning, Sanitary Disposal, Fumigation and Garbage Collection Services at Uchumi, Finance and Utalii Houses respectively. The tender submission deadline was set as Friday, 3rd May 2024 at 10. 00 a.m.

39. The interested Party was awarded the tender and on 14th June 2024 The Ex parte Applicant wrote to the 2nd Respondent requesting a debriefing.

40. The 2ndRespondent provided the debriefing on 27th June 2024 wherein it informed the Applicant of among other things the utilization of the technical and financial evaluation tool in determining the winning bid.

41. The Ex parte Applicant was unhappy that the 2nd Respondent utilized the technical and financial evaluation tool.

42. According to the 2nd respondent, the latest date by which the ex parte Applicant ought to have approached the 1st Respondent for a review of the decision of the Procuring Entity, through the 2ndRespondent was 17th May 2024.

43. Instead, the Ex parte Applicant instituted proceedings before the 1st Respondent on 28th June 2024 to complain about the utilization of the technical and financial evaluation tool by the 2nd Respondent.

44. The 1st Respondent, in its decision rendered on 16th July 2024 in Application No. 59/2024 is said to have directed the 2ndRespondent to proceed with Tender No. ONT/KDC/008/23-24 for Provision of Cleaning, Sanitary Disposal, Fumigation and Garbage Collection Services to its lawful and logical conclusion as a result of which the Procuring Entity and the Interested Party herein entered into a contract on 31st July 2024 regarding Tender No. ONT/KDC/008/23.

45. The Ex parte Applicant filed the instant suit on 31st July 2024 and served the 2nd Respondent with the Court’s Directions dated 31st July 2024 late in the afternoon on 1st August 2024.

46. It is the 2nd respondent’s case that by then, the substantive prayers number 3, 4 and 5 in the Ex parte Applicant’s Chamber Summons dated 30th July 2024 were not capable of being fulfilled.

47. Section 175(1) of the Public Procurement and Asset Disposal Act provides that a person aggrieved by the 1stRespondent’s decision may seek judicial review within 14 days.

48. The Ex parte Applicant it is argued failed to bring their review application within this period rendering the 1st Respondent’s decision final ipso jure.

49. It is its case that the order cannot be granted since there already exists a contract between the Interested Party and the Procuring Entity and that according to Section 135(1) of the Public Procurement and Asset Disposal Act, a contract is confirmed through the signature of a contract document incorporating all agreements between the parties.

50. The 2nd respondent’s case is that an order of Mandamus is intended to compel a public authority to perform a duty it is legally obligated to carry out, but it cannot be used to undo a decision that has already been finalized such as the 1st Respondent’s decision of 16th July 2024.

51. The ex parte Applicant it is urged has failed to demonstrate any clear legal error, lack of jurisdiction, or an abuse of discretion by the 1st Respondent that justifies the extraordinary remedy of certiorari.

52. Reliance is placed in the case of Republic vs. District Land Registrar Kiambu & Another Ex Parte: Muguga Pyrethrum Growers Cooperative Society Limited & Another [2014] eKLR, where the Hon. G.V. Odunga, J (as he then was, now JA), while citing the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996 restated the parameters of judicial review.

53. Reliance is also placed in the case of Republic vs. District Land Registrar Kiambu & Another Ex Parte: Muguga Pyrethrum Growers Cooperative Society Limited & Another (supra), where the Hon. G.V. Odunga, J (as he then was, now JA), while citing the case of Anthony John Dickson & Others vs. Municipal Council of Mombasa HCMA No. 96 of 2000 affirmed the following view on the Court’s approach to judicial review applications at paragraph 41 of the Judgment.

54. In judicial review, it is the responsibility of the applicant to provide sufficient evidence to support the specific relief they seek and to demonstrate that the relief is appropriate and effective in the circumstances.

55. The court’s discretion in granting judicial review remedies is based on sound legal principles and must be exercised carefully. This principle is echoed in Halsbury’s Laws of England, where it is emphasized that the court must weigh various factors to determine whether the requested remedy is the most effective in the given situation.

56. Judicial review remedies, being discretionary, are not guaranteed even when the necessary grounds are present. The court has the authority to deny these remedies if it determines that they are not suitable or would not serve a practical purpose. The court is guided by the principle that it should not issue orders in vain, even if it has the jurisdiction to grant them.

57. There are several circumstances where the court may choose to withhold a remedy. These include situations where there has been an unreasonable delay in seeking the remedy, where the public body in question has done everything reasonably expected to fulfill its duty, where the remedy is no longer necessary, or where granting the remedy would lead to administrative chaos, public inconvenience, or where the goal of the application has already been achieved.

58. It is its case that even if the Court were to find that the ex parte Applicant’s judicial review has been brought within the time stipulated in the law.

59. The Court should not grant a prayer for the remedy of certiorari for the reason that by the time the ex parte Applicant herein served the 2nd Respondent with the Court’s Directions dated 31st July 2024 late in the afternoon on 1st August 2024, the substantive prayers in the present judicial review suit were not capable of being fulfilled.

60. It is the 2nd respondent’s argument that the jurisdiction of the Court is the power and the authority of a Court or a Tribunal to determine a case. The power of the Court to inquire into facts, rules and regulations, apply the law, make decisions and to arrive at binding findings is what amounts to the jurisdiction of the Court. This power flows from the Constitution and statutes. It can be limited and expanded by statutes.

61. Also, that the power of the Respondent flows from Sections 167(1), 172 and 173 of the Public Procurement and Assets Disposal Act 2015.

62. The ex parte Applicant’s suit it is urged raises issues that pertain to the merits of the case rather than the process by which the decision was reached. Further that Judicial review, is concerned with the legality of the decision-making process, not the correctness of the decision itself.

63. According to the 2nd respondent by challenging the substance of the 1st Respondent's decision, the Applicant is effectively questioning the merits, which is outside the scope of judicial review.

64. It is its case that the suit does not properly engage with the principles of judicial review and should be dismissed on this basis.

65. Lord Bright man’s learned view in the case of Chief Constable of the North Wales Police vs. Evans [1982] 1 WLR 1155 is said to read thus:“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 words imply, is not an appeal from a decision but a review of the manner in which the decision was made.”

66. The delay by the Ex parte Applicant in taking solid steps to enforce its perceived rights it is urged is egregious and has caused significant prejudice for the Procuring Entity and the Interested Party have already entered into a contract on 31st July 2024 regarding Tender No. ONT/KDC/008/23-24 for Provision of Cleaning, Sanitary Disposal, Fumigation and Garbage Collection Services.

67. Reliance is placed in the case of Republic vs. District Land Adjudication and Settlement Officer Maara Sub-County & 3 Others; Ex parte Applicant: M’nyiri Ragwa; Njeru Kiririka (Interested Party) (supra), where the Hon. C.K. Yano, J made reference to an important explanation of the significance of the conduct of an ex parte Applicant in pursuit of judicial review from Halsbury’s Laws of England 4th EDN.Vol. 1 (1) para 12 page 270 thus:“The remedies of quashing orders (formerly known as orders of Certiorari) prohibiting orders formerly known as orders of prohibition (mandatory orders formerly known as orders of mandamus) …are all discretionary. The court has a wide discretion whether to grant relief at all and if so, what form of relief to grant. In deciding whether to grant relief the court will take into account the conduct of the party applying and consider whether it has not been such as to disentitle him to relief. Undue delay, unreasonable or unmeritorious conduct, acquiescence in the irregularity complained of or waiver to the right to object may also result in the court declining to grant relief.”

Interested Party’s Case; 68. The Ex-parte Applicant’s served the pleadings in the instant judicial review proceedings upon the Interested Party on 2nd August 2024.

69. In opposing the Application, The Interested Party filed a Notice of Preliminary Objection dated 6th August 2024 and a Replying Affidavit sworn by Maureen Anyama on 6th August 2024.

70. It is its case that The Request for Review in PPARB Application No.59 of 2024 was heard and determined vide the 1st Respondent’s Decision dated 16th July 2024 in which the Interested Party’s Preliminary Objection was upheld and consequently, the Request for Review was struck out.

71. Fourteen (14) days from 16th July 2024 within which time, the Ex-parte ought to have commenced the filing of these judicial review proceedings lapsed on 30th July 2024 and upon the lapse of 14 days the Procuring Entity entered into a written procurement contract with the Interested Party.

72. The 1st Respondent’s Decision became final and binding to all parties, thus the 1stRespondent’s Decision is not amenable for judicial review.

73. The case Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) 1, was relied on the issue of jurisdiction.

74. According to the interested party Public procurement has its underpinning in the Constitution of Kenya, 2010 (hereinafter, the “Constitution”). Article 227(1) of the Constitution enjoins “a State organ or any other public entity while contracting for goods or services, to do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective”. Article 227(2) of the Constitution provides for enactment of a legislation that prescribes a framework within which policies relating to public procurement, inter alia, shall be implemented.

75. Further it argues that a person aggrieved by a decision made by the 1st Respondent has a right to institute judicial review proceedings under Section 175(1) of the Procurement Act within fourteen (14) days from the date of the 1st Respondent’s Decision, failure to which the 1st Respondent’s Decision becomes final and binding to all parties and the Ex-parte Applicant is therefore estopped from challenging the 1stRespondent’s Decision.

76. Reliance is placed on ADK Technologies Ltd in Consortium with Computer Technologies Ltdv Public Procurement Administrative Review Board & 4 others (Civil Appeal E598 of 2021) [2022] KECA 407 (KLR) (4 March 2022) (Judgment) Neutral citation: [2022] KECA 407 (KLR) where the Court of Appeal in Kenya, held as follows:“9. ​Section 175 has been the subject of consideration by this Court in Aprim Consultantsv. Parliamentary Service Commission & Another, CA. No. E039 of 2021 (“the Aprim case”) and in The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others, CA. No. E012 of 2022 (“the TSK Electronica case”). Indeed, the last decision was delivered barely three days ago, on 28th February.

In the Aprim case, the Court stated that section 175 was couched in mandatory terms. The Court expressed itself thus:“A perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes.Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and he invested with finality.1. ….………………….. “​

77. The Interested Party’s case is that the timelines of fourteen (14) days from the date of the 1st Respondent’s Decision within which the Ex-parte Applicant ought to have commenced these judicial proceedings are cast in stone and cannot be varied.

78. This strict timeline underscores the intention of Parliament to ensure that disputes relating to public procurement are disposed of expeditiously. These timelines are not amenable to being extended as the lapse of such timelines have serious consequences like deeming the 1stRespondent’s Decision final and binding to all parties by operation of law.

79. The Interested Party also submits that the judicial review proceedings herein are time-barred for being commenced and brought after the lapse of fourteen (14) days from the date of the 1st Respondent’s Decision in contravention of Section 175(1) of the Procurement Act, thus this Honourable Court has no jurisdiction to hear and determine the same.

80. The court is invited to take note of the new issues and/or evidence by the Ex-parte Applicant in the Ex-parte Applicant’s Submissions to the Preliminary Objections in making reference to a receipt allegedly generated on 30th July 2024 and which, allegedly, indicates that an application was paid for at 21:41:18.

81. The Interested Party argues that no evidence of the alleged receipt has been adduced before this Honourable Court, thus the same does not form part of the records of this Honourable Court.

82. There is no affidavit by the Ex-parte Applicant in opposition to the Interested Party’s Preliminary Objection and/or in response to the Interested Party’s Replying Affidavit thus the Ex-parte Applicant is bound by its pleadings and points of law.

83. It is also the Interested Party’s case that ​the Ex-parte Applicant cannot now purport to introduce new issues and/or evidence in the Ex-parte Applicant’s Submissions to the Preliminary Objections after close of pleadings.

84. Further that this Honourable Court should disregard and/or expunge that portion of the Ex-parte Applicant’s Submissions to the Preliminary Objections which makes reference to the aforesaid receipt and failure to do so will be condemning the Interested Party unheard against the rules of natural justice and against the constitutional rights to fair administrative action and fair hearing under Articles 47 and 50 of the Constitution.

85. In supporting this submission with respect to objecting to new issues and/or evidence being introduced at submissions stage, the Interested Party relies on FMS v MAS [2020] eKLR where M. Thande J held as follows:“15. ​…………… It is trite law that Submissions are not pleadings and that new issues cannot be raised in submissions. In Republic vs. Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited & another [2014] Korir, J. stated:

“ The Applicant, the respondents and the interested party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of affidavits to support the submissions. New issues raised by way of submissions are best ignored.”“16. ​In light of the foregoing, the way to counter the alleged evidence introduced in submissions by the Respondent is not to seek to file additional evidence to rebut the same, but to ask the Court to disregard the same. ………………………….”

86. Reliance is also placed in the case of Republic v Director, Kenya School of Law & 2 others; Kitsao (Ex parte Applicant) (Judicial Review Application E001 of 2024) [2024] KEHC 2975 (KLR)(22 March 2024)(Judgment) Neutral citation: [2024] KEHC 2975 (KLR) where M. Thande J held as follows:“30. ​The 1st and 2nd Respondents submitted that the Tribunal acted in blatant disregard of the judgment of the Court of Appeal and has moved to the High Court to appeal the decision of the Tribunal and seek orders for stay pending the said appeal. With respect, the contention is not supported by any evidence on record. The replying affidavit sworn by Fredrick Muhia did not allude to this nor was a copy of the alleged appeal exhibited. This is thus a new issue raised in submissions.

31. ​It is trite that parties are bound by their pleadings and that new issues cannot be raised in submissions as the Respondents seek to do, and any issues so raised, are best ignored…………..”

87. It is its submission that contrary to the submissions by the Ex-parte Applicant, there was no issue with the Judiciary E-filing system on 30th July 2024. Further that the instant judicial review proceedings are time-barred.

88. It is its case that the Chamber Summons Application supported by the Verifying Affidavit as drawn and filed is fatally defective for the following reasons;i.The procedure for applications for judicial review are laid down in Order 53 of the Civil Procedure Rules. Order 53 Rules 1(1) & (2)(b) states thus:-“Order 53-Applications for Judicial Review 1. ​Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1] No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule.

(2)​An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —(a)​…….; and(b)​affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.

(3)​………

(4)​……….”ii.The Verifying Affidavit did not verify:-a.the facts and averment that there is no other cause pending;b.that there have been no previous proceedings in any court between the Ex-parte Applicant and the Respondents, over the same subject matter; andc.that the cause of action relates to the Ex-parte Applicant named in the application.

89. According to the Interested Party the Verifying Affidavit is thus defective and bad in law and it therefore follows that the Chamber Summons Application is equally defective and bad in law.

90. It is the Interested Party’s case that the leave granted to seek judicial review remedies herein and which leave was granted to operate as a stay of the 1st Respondent’s Decision, cannot stand for having been obtained pursuant to a fatally defective Chamber Summons Application.

91. Reliance is placed on the case of Republic v Nairobi County Governor & 2 others; Speaker Nairobi County Assembly & another (Interested Parties); Gufu (Ex parte Applicant)(Judicial Review Miscellaneous Application E004 of 2022) [2022] KEELRC 4082 (KLR)(30 September 2022)(Ruling) Neutral citation: [2022]KEELRC 4082 (KLR) where Stella Ruto J while addressing omission of the requirement of Order 53 Rule 1(2)(b) of the Civil Procedure Rules in a Verifying Affidavit held as follows:“31. The question now is whether the said omission is fundamental and whether the same renders the Application fatally defective? The Ex parte Applicant’s position is that the omission is not fatal and is curable under Order 19 Rule 7 of the Civil Procedure Rules. I am of a different view.

32. ​My position is fortified by the determination in the case of Commissioner of Lands vs Kunste Hotel Ltd [1995]-1998]1 EA 1, where the Court of Appeal held that Judicial Review jurisdiction is a special jurisdiction which is neither civil or criminal and the Civil Procedure Act does not apply since it is governed by Section 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law.….

34. ​Accordingly, and contrary to the Ex parte Applicant’s argument, the defects in the Application cannot be cured by Order 19 Rule 7 of the Civil Procedure Rules.……………..

37. ​………………... To my mind, the requirement under Order 53 Rule 1(2) (b) is not an idle one, as it allows the Court exercise discretion appropriately, prior to granting leave.

38. ​For the foregoing reason, it is my finding that the omission in the Ex parte Applicant’s Verifying Affidavit is grave and incurable, as to render the Application defective.”

92. According to the Interested Party the Chamber Summons Application accompanied by the Verifying Affidavit and annexures thereto and the Notice of Motion Application grounded on the Supporting Affidavit and the annexures thereto as drawn and filed are fatally defective and bad in law.

93. The exhibits to the Verifying Affidavit and Supporting Affidavit are argued to be inadmissible rendering both the Affidavits incomplete, for rejection and valueless. Consequently, the Chamber Summons Application and the Notice of Motion Application having been anchored on the valueless Affidavits, are fatally defective and for striking out.

94. It is also its case that the failure to properly adduce evidence through exhibits to the Verifying Affidavit is not one of mere technicality as it goes to the root of the Application.

95. Reliance is placed in the case of Jeremiah Nyangwara Matoke v Independent Electoral And Boundaries Commission & 2 others [2017] it was held as follows:-“22. ​On the second issue of annextures, Rule 9 of the Oaths and Statutory Declarations Rules requires that annextures should be sealed and stamped. The said rule stipulates as follows:“………….”

23. In the case of Abraham Mwangi vs. S. O. Omboo & Others HCCC No. 1511 of 2002 Hayanga J (as he then was) quoted Order 41 of the Rules of Supreme Court of England that dealt with forms of affidavits and exhibits. That Order 41 divided exhibits into documents and non documents and maintained that fly papers are misleading and fraught with uncertainty. He held:“Exhibits to affidavits which are loose fly sheets for identification attached to them and do not bear exhibits marked on them directly must be rejected. The danger is so great. These exhibits are therefore rejected and struck out from the record. That being the case the application fails and is dismissed.”

24. ​Similarly, in the case of Francis A. Mbalanya vs. Cecilia N. Waema [2017] eKLR, the annextures had not been marked completely. The judge held that:“The law that requires the sealing and marking of annexures with serial letters is in mandatory terms and must be complied with... in the instant case, the law has provided in mandatory terms the manner in which evidence by way of annextures can be received by court. The failure to comply with that law, like in the instant case can only lead to one thing, the striking out of the offending documents. ……………...”

25. ​Further, in the case of Fredrick Mwangi Nganga vs.Garam Investments & Another [2013]eKLR where an annexture was only marked “A” the court stated:“As a consequence of all the above, I find that although the court has power to allow an amendment to the plaintiffs said Notice of Motion dated 14 June 2013 under the provisions of order 8 Rules 5 as well as Section 100 of the Civil Procedure Act, the fact that the plaintiff has breached Rule 9 of the oaths and Statutory declarations rules necessarily means that his application to amend must fail. As I see it, the only option is to withdraw the same and field a fresh application. Further, as I have refused the plaintiff’s application dated 14 June 2013 as currently drawn and presented does not support the interim orders sought therein and the same are lifted accordingly.”

26. ​Another decision addressing the matter of annextures to affidavits was made by Judge Mutungi in the case of Solomon Omwega Omache & Another v Zachary O Ayieko & 2 others [2016] eKLR, where he stated as follows:-"Although the point was not taken up by the plaintiffs the court has a duty to uphold the sanctity of the record noting that this is a court of record. Before the court is a replying affidavit with annextures which are neither marked nor sealed with commissioner’s stamp. Are they really exhibits" I do not think so and they cannot be properly admitted as part of the record. I expunge the exhibits and in effect that renders the replying affidavit incomplete and therefore the same is also for rejection as without the annextures it is valueless. This should serve as a wakeup call to practitioners not to be too casual when processing documents for filing as it could be extremely costly to them or their clients as crucial evidence could be excluded owing to counsels or their assistant’s lack of attention and due diligence."

27. ​In the instant case, the petitioner argued that the error or failure to mark and seal the annextures could be cured by the provisions of Article 159(2) (d) of the Constitution. I disagree with this argument because annexures form a very critical part of an affidavit as it is the documentary evidence on which the petition is anchored for which the attestation and marking of exhibits are a mandatory statutory requirement and not a mere procedural technicality.

28. ​In the case of Abdul Aziz Juma vs.Nikisuhu Investment & 2 Others ELC. No. 291 of 2013 Mutungi J. held:“Article 159 of the Constitution was never intended to override clear provisions of statute unless such provisions of the statute had been found and held to be unconstitutional. Acts of Parliament... make provisions for the application of the law and the Constitution demands of the courts to protect the Constitution, the law and the Acts enacted by Parliament. In my view, Article 159 of the Constitution cannot be resorted to where there are clear and express provisions of the law.”

29. ​I concur with the findings of Mutungi J. in the above cited Abdul Aziz Juma case (supra) as the clear rules must be adhered to lest our courts sink to a state of anarchy. Taking a cue from the above decision, I similarly find that all the documents that were highlighted by the 3rd respondent as annextures to the petitioner’s affidavit appearing just before page 53, 57, 58, 59, 122 and 171 of the petition bundle, that contained a blank stamp of attestation that was neither signed, dated or marked as exhibits are fly documents which are hereby expunged from the record. For purposes of clarity, I find that all the documents that are attached to the petitioner’s affidavit that are neither marked nor signed as exhibits are hereby expunged from the record.”

96. It also relies on the Court of Appeal in Pharmacy and Poisons Board & another; Mwiti & 21 others (Respondent)(Civil Appeal E144 of 2021)[2021] KECA 97 (KLR) (22 October 2021) Ruling) Neutral citation: [2021] KECA 97 (KLR) as follows:“5. ​Notwithstanding the foregoing, it would be remise of us not to comment on, albeit obiter, to set the law straight on this and other issues that emerge from the application before us. With regard to the unsigned supporting affidavit, the unmarked and unsealed annexures, it would suffice to observe that such an affidavit is fatally defective and of no value to the applicants’ Motion.……..

7. The same fate befalls unmarked and unsealed annexures. They are of no value to the application to which they relate in view of the fact that an Affidavit and the annexures attached thereto constitute evidence. To qualify as evidence, such annexures must be marked and sealed by a Commissioner for oaths as required by Rule 9 of the Oaths and Statutory Declarations Rules.”

97. The case of Republic v Nairobi County Governor & 2 others; Speaker Nairobi County Assembly & another (Interested Parties); Gufu (Exparte Applicant)(Judicial Review Miscellaneous Application E004 of 2022) [2022] KEELRC 4082 (KLR)(30 September 2022)(Ruling) Neutral citation: [2022]KEELRC 4082 (KLR) is relied on where Stella Ruto J while addressing the filing of a Supporting Affidavit together with the substantive motion held as follows:“43. ​I have also noted that the Ex parte Applicant filed a Supporting Affdavit together with the substantive motion. This was another error. On this issue, I gather support from the determination in the case of John Ria Fakii vs Attorney General [2012] eKLR, where it was held that: -“It is trite law that once an Applicant obtains leave to file judicial review proceedings he is required to only file a Notice of Motion without any affidavit introducing evidentiary material. Once leave is granted, the principal pleadings in the Statutory Statement is the evidence in the Verifying Affidavit accompanying the Chamber Summons for leave to file the judicial review applications. The Provisions of Order 53, Civil Procedure Rules are clear on this. In fact, the court itself has no jurisdiction to grant leave to the Applicant to file any further or other affidavit to the Notice of Motion which is merely a vessel to present the Verifying Affidavit before the court and which itself contains the facts in support of the statement. The statement cannot have any exhibits or other evidence annexed to it. It therefore follows that the purported “Supporting Affidavit” to the Notice of Motion dated 11th April 2006 is inadmissible and unnecessary appendage. The court must cleanse its record, and I hereby strike out the said Affidavit to leave the Notice of Motion bare as required by Law.

44. ​Against this background, I do not find it necessary to consider the other issues for determination as it is obvious that the instant proceedings cannot be sustained.”

98. According to the Interested Party the Chamber Summons Application as currently drawn and filed does not support the grant of leave to file an application for remedies in judicial review as sought therein and for such leave to operate as a stay of execution of the 1stRespondent’s Decision.

99. It is also its case that the leave must be abated and/or lifted as guided in Fredrick Mwangi Nganga v Garam Investments & Another [2013] eKLR referred to hereinbefore.

100. Further, that abating and/or lifting of the said leave to file an application for remedies in judicial review and for such leave to operate as a stay of execution of the 1stRespondent’s Decision, leaves the substantive application for remedies in judicial review (i.e. Notice of Motion Application) crippled as it is on record without the statutory mandatory leave and grounded on nothing.

101. It is also its case that the Ex-parte Applicant is challenging the merits of the 1st Respondent’s Decision.

102. Reliance is placed in the case of Dande & 3 others v Inspector General, National Poloce Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) Neutral citation: [2023] KESC 40 (KLR) where the court held;“81. ​The entrenchment of judicial review in the Constitution has led to the emergence of divergent views on the scope of judicial review. The first group postulates that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself while the second group opine that under the current constitutional dispensation, courts could delve into both procedural and merit review in resolving disputes.……..

83. ​Also, in this Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others SC Petition No 2 of 2019 [2020] eKLR observed as follows:

‘[40]The petitioner approached the High Court by way of the prescribed procedures under Judicial Review, which revolve around the paths followed in decision-making. Such a course, as the appellate court properly held, is not concerned with the merits of the decision in question. The law in regard, which falls under the umbrella of basic ‘Administrative Law’, is clear enough, and it is unnecessary to belabour the point.’…….

85. ​It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.……

87. ​…………The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue.”

103. The Interested Party urges that Chamber Summons and the Notice of Motion Application make no reference to any specific provisions of the Constitution. Further that for the Ex-parte Applicant to succeed on the grounds of procedural impropriety it must place evidence of the 1stRespondent’s failure to act fairly inter alia, failure to uphold the principles of natural justice.

104. According to the Interested Party the 1stRespondent’s Decision was arrived at fairly, by among others upholding the principles of natural justice.

105. The 1st Respondent it is argued heard and considered the Interested Party’s preliminary objection as part of the substantive Request for Review in accordance with Regulation 209(4) of the Public Procurement and Asset Disposal Regulations, 2020.

106. It further did not hold that the entire Request for Review was time barred but rather held that the extent to which the Request for Review was challenging the award criteria in the Tender Document, was time barred as seen at paragraph 83 of the 1st Respondent’s Decision.

107. It is the interested party’s case that the 1st Respondent lawfully and rightly held as follows in the 1st Respondent’s Decision:“80. The Request for Review in as far as it challenges the award criteria is a direct challenge on the provisions of the Tender Document. Accordingly, the Applicant had 14 days from the date of access to the Tender Document and in any event not later than the tender submission deadline.…….

83. ​When computing time when the Request for Review ought to have been filed, 3rd May 2024 is excluded as per section 57(a) of the IGPA being the day that the Applicant plausible learnt of the award criteria in the Tender Document. This means time started to run on 4thMay 2024 and lapsed on 17th May 2024. Essentially, the Request for Review was filed 42 days outside time and therefore time-barred in as far as it was challenging the award criteria in the Tender Document. …….” [Emphasis ours]​

108. Further and guided by Daniel Ogera Obonyo v Edwin Akach Okinda [2017] eKLR; Siaya High Court Civil Case No.198 of 2016, the 1st Respondent is said to have held that the Request for Review was incompetent and for striking out in its entirety for having been drawn and filed by a person who had not taken out a practicing certificate for the year 2024 as seen at paragraph 97 of the 1st Respondent’s Decision. This is because considering such pleadings would be promoting illegality by unqualified persons who pose as advocates. The 1st Respondent lacked jurisdiction to hear and determine the Request for Review and lawfully down its tools.

109. The 1st Respondent’s Decision according to the Interested Party is not tainted with any procedural impropriety and this Honourable Court should not be concerned with the merits of the 1stRespondent’s Decision.

110. ​It is the Interested Party’s case that the 1st Respondent’s Decision is not unreasonable as it was founded on both written law and case law.

111. It is its case that this Court should not allow new evidence that was not part of the proceedings before the 1st Respondent to be introduced into these judicial review proceedings or any other proceedings concerning the subject tender.

Analysis And Determination: Issues for determination; 112. Upon perusing the pleadings and rival submissions of the parties herein, The following issue lend themselves for hearing and determination;1. Whether or not the Notices of Preliminary Objection should be upheld or declined.2. Whether the ex parte Applicant, has made out a case for the grant of the orders sought.3. Who shall bear the costs.

113. In order for Ex parte Applicant, to succeed it has to demonstrate that their case, falls within the principles as highlighted in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300,where it was held that:“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”

Whether or not the Notices of Preliminary Objection should be upheld or declined. 114. In the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969]E.A.696 in the celebrated case Law J.A states a preliminary objection to be thus:-“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”

115. Sir Charles Newbold, President stated in the same judgment as follows:-“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

116. The Notices of Preliminary Objections raise issues of jurisdiction.

117. The jurisdiction of this Honourable Court with respect to the right to judicial review to public procurement flows from Section 175(1) of the Procurement Act which stipulate as follows: -i.A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen 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.……...”

118. In the case of Republic v Public Procurement Administrative Review Board Ex Parte Biomed Healthcare Limited; Accounting Officer, Deparment of Health Services, County Government of Uasin Gishu, & 2 others (Interested Parties) [2021] eKLR it was held that,“42. It is notable in this regard that in addition to the standstill period of fourteen days before a contract can be concluded under Section 135 of the Public Procurement and Assets Disposal Act of 2015 that is triggered by the date of notification of award, there are standstill periods provided for in Section 168 of the Act, which provides for suspension of procurement proceedings once a Request for Review is filed with the Respondent, and in section 175(1) of the Act which provides as follows once the Respondent renders its decision on a Request for Review:“A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen 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.

119. The impugned decision was delivered on 16th July 2024 and thus the statutory window for challenging the decision closed on 30th July 2024.

120. By filing the instant judicial review proceedings on 31st July 2024, the Applicant invoked this Honourable Court’s jurisdiction outside the strict statutory timelines. This court cannot enlarge the time.

121. In so holding, this court is guided by the Court of Appeal in ADK Technologies Ltd in Consortium with Computer Technologies Ltdv Public Procurement Administrative Review Board & 4 others (Civil Appeal E598 of 2021) [2022] KECA 407 (KLR) (4 March 2022) (Judgment) Neutral citation: [2022] KECA 407 (KLR), where it held as follows:“9. ​ Section 175 has been the subject of consideration by this Court in Aprim Consultantsv. Parliamentary Service Commission & Another, CA. No. E039 of 2021 (“the Aprim case”) and in The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others, CA. No. E012 of 2022 (“the TSK Electronica case”). Indeed, the last decision was delivered barely three days ago, on 28th February.

10. In the Aprim case, the Court stated that section 175 was couched in mandatory terms. The Court expressed itself thus:“A perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes.Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and he invested with finality.….………………….. “.​

122. The case of Republic vs. Public Procurement Administrative Review Board Ex Parte Intertek International Limited; Accounting Officer, Kenya Bureau of Standards & 6 others (Interested Parties) [2022] eKLR, is also referred to where the Hon. A.K. Ndung’u, J remarked as follows: “It is obvious to this court that the p.o raised by the applicant is on a point of law challenging jurisdiction. Jurisdiction goes to the root of a matter and where none exists, the court must down its tools. A point of law touching on jurisdiction can, like any other, be raised at any stage and indeed even on appeal. The Court of Appeal addressing this point in Kenya Ports Authority vs. Modern Holdings (E.A.) Limited 2017] eKLR stated.”“Generally speaking, and on the authority of the Supreme Court decision in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others, a court can only exercise that jurisdiction that has been donated to it by either the Constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Jurisdiction is in the end everything since it goes to the very heart of a dispute. Without it, the court cannot entertain any proceedings and must down its tools.”

123. The upshot of the foregoing is that the Notices of Preliminary Objection are upheld.

124. In any event, parties have already engaged into a contract.

Whether the Ex parte Applicant, has made out a case for the grant of the orders sought. 125. Having found that this court lacks jurisdiction the court has to down its tools and it lacks the capacity to determine this issue.

Costs: 126. The general rule flowing from Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya is that costs should follow the event. That is to say, the successful party should be awarded its costs.

127. This general rule is elaborated by Justice Kuloba in his book, Judicial Hints on Civil Procedure, Vol. 1 at p. 99 as follows:“The first question is what is meant by "the event" in the proviso to subsection (1) of this section? The words "the event" mean the result of all the proceedings incidental to the litigation. The event is the result of the entire litigation. .... Thus, the expression "the costs shall follow the event" means that the party who on the whole succeeds in the action gets the general costs of the action. (Emphasis provided).

128. The applicant shall shoulder the costs.

Disposition; 129. This court lacks jurisdiction.Order;1. The Notice of Preliminary Objections are upheld.2. The Notice of Motion dated 1st August 2024 is struck out with costs.

DATED, SIGNED AND DELIVERED THIS 10THDAY OF SEPTEMBER 2024J. CHIGITI (SC)JUDGE