[2023] KEHC 23795 (KLR)

Republic v Public Procurement Administrative Review Board; Space Contractors & Suppliers Investment Limited (Exparte Applicant); Accounting Officer, Kenya Ports Authority & 8 others (Interested Parties) (Judicial Review E025 of 2023) [2023] KEHC 23795 (KLR) (9 October 2023) (Abridged Judgment)

Neutral citation: [2023] KEHC 23795 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E025 of 2023

OA Sewe, J

October 9, 2023

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

Respondent

and

Space Contractors & Suppliers Investment Limited

Exparte Applicant

and

Accounting Officer, Kenya Ports Authority

Interested Party

Kenya Ports Authority

Interested Party

Daorab Enterprises

Interested Party

Gedlinks General Supplies & Construction Limited

Interested Party

Kahuna Kapital Investment Limited

Interested Party

Fransa Agencies

Interested Party

Sender Services

Interested Party

Somakim Construction And Service Trading Limited

Interested Party

Suldanka Harti Limited

Interested Party

Abridged Judgment

[1]The Notice of Motion dated 2nd October 2023 was filed by the ex parte applicant, Space Contractors & Suppliers Limited, (herein after the applicant) upon being granted leave to file a substantive judicial review application vide the ruling dated 2nd October 2023. It was filed pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Sections 3 and 175 of the Public Procurement & Asset Disposal Act, No. 33 of 2015 and Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010 for the following judicial review orders:(a)That an order of Certiorari be issued to quash the decision made on the 21st August 2023 by the respondent in PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer Kenya Ports Authority and 22 Others and consequently that the award made on 10th July 2023 by the 1st and 2nd Interested parties with regard to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa, be also quashed.(b)That the costs of the application be provided for.

[2]The application was premised on several grounds as set out on the face of the Motion. In particular, the applicant contended that:(a)Sometimes in January 2023, the 2nd interested party invited bids for Tender No. KPA/075/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa; and that the applicant was one of the bidders who responded to the invitation;(b)Vide a Notification of Award dated 10th July 2023, which was communicated to the applicant via email on 18th July 2023, the 1st and 2nd interested parties notified the applicant that its bid was not successful and that the 3rd to 23rd interested parties were the successful bidders of the said tender;(c)The applicant was not satisfied with the said awards and hence filed a Request for Review before the respondent, being PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer, Kenya Ports Authority and 22 Others;(d)That on 21st August 2023 the respondent delivered its decision in respect of the review application whereby it dismissed the Request for Review;(e)That the applicant is aggrieved by the said decision as it is fundamentally flawed in so far as the respondent found that it had no jurisdiction to entertain the said Request for Review and in finding that the applicant had no locus standi to file the said Request for Review;(f)Under Section 175 of the PPADA, the applicant has a statutory right to file judicial review proceedings and once that is done the tendering process ought to be automatically stayed to await the outcome of the judicial review process;(g)The application is well merited in law as the respondent failed to determine the application for Request for Review on its merits by holding that it did not have jurisdiction; thereby abdicating its duties;(h)The respondent denied the applicant its fundamental right to be heard as provided for in Article 50 of the Constitution by failing to hear the Request for Review on its merits;(i)The applicant was further denied its right to natural justice by being condemned unheard;(j)The respondent failed to uphold the principle expressed in the phrase ex turpi causa non oritur actio whereby the respondent should not have allowed the interested parties to benefit from the acts of illegality committed by the 1st and 2nd interested parties and some of the other interested parties;(k)The respondent handled the applicant’s complaints in a casual and technical manner, and therefore acted in disregard of Article 159 of the Constitution, thereby occasioning injustice; and,(l)The respondent’s decision failed to take into account Articles 10, 47, 201 and 227 of the Constitution whereby the respondent ought to have stood firmly in defence of legality and regularity in public procurement matters and not allow itself to be used as a vehicle to sanitize corruption in a public procurement matter.

[3]The application was also premised on the Statement of Facts filed with the Chamber Summons dated 25th August 2023 and the Verifying Affidavit sworn by Mercy Vosenah Musera on 25th August 2023. The application for leave having been filed on 25th August 2023, the 45 days provided for in Section 175(3) of the Public Procurement and Asset Disposal Act, No. 33 of 2015 (PPADA) for the hearing and determination of such matters is due to expire today. The substantive application dated 2nd October 2023 was canvassed by way of written submissions which were highlighted on 4th October 2023. Accordingly, and given the timeline provided for in Section 175(3) of the PPADA, this matter was fixed for Judgment today pursuant to Rule 32(1) of the High Court (Organization and Administration) (General) Rules.

[4]Having given careful consideration to the application, the Statement of Facts and the Verifying Affidavit filed at the leave stage, the responses filed herein by way of Notices of Preliminary Objection and Replying Affidavits as well as the written and oral submissions made in that regard by learned counsel, the key issues arising for determination are:(a)Whether the Court has jurisdiction to hear and determine the judicial review application;(b)Whether the respondent has the capacity to sue or be sued; and if so,(c)Whether the application has merit.

A. On the jurisdiction of the Court: [5]The jurisdiction of the Court was challenged from two angles. The first point taken by Mr. Mbogo, counsel for the 1st and 2nd interested parties was that the application is time-barred, having been filed outside the statutory time stipulated in Section 175 of the PPADA. The same objection was taken by Mr. Sang on behalf of the 6th, 8th, 10th, 14th, 16th and 19th interested parties; and was also adverted to in the responses filed by the other interested parties. Hence, counsel submitted that, since the impugned decision was rendered by the respondent on the 21st August 2023, the substantive application ought to have been filed on or before 4th September 2023; and not 2nd October 2023 as was done by the applicant. Accordingly, counsel submitted that judicial review proceedings under Order 53 of the Civil Procedure Rules only start when the substantive motion has been filed; and therefore that the jurisdiction of the Court was ousted by effluxion of time.

[6]It is noteworthy, however, that the main decision relied on by counsel to press the argument that judicial review proceedings commence when the substantive application is filed, namely, Republic v Commissioner for Co-operative Development & Another [2004] 1 KLR 483, was rendered in 2004 before the promulgation of the 2010 Constitution. Granted that the remedy of judicial review is now anchored in the Constitution, which provides that justice be rendered without undue regard to procedural technicalities, it is my finding that the applicant was at liberty to either file a substantive application directly or seek leave under Order 53 of the Civil Procedure Rules as it did. The Court pointed out in its ruling dated 2nd October 2023 that judicial review now has constitutional underpinning and that a party is at liberty to choose the approach provided for in Order 53 or the constitutional/statutory procedure. Accordingly, having opted to file an application for leave on 25th August 2023, the applicant must, in all fairness, be deemed to have commenced in earnest the proceedings for judicial review, albeit at the risk of his application running afoul of Section 175(3) of the PPADA in terms of timelines. Thus, it is my finding that the instant judicial review application was commenced within time, having been brought within 4 days of the impugned decision; and therefore the application is competently before the Court for determination.

[7]The second ground of objection taken by counsel for the interested parties was that the Court is functus officio. This ground of objection was raised by Mr. Sang on the basis that a similar application had been filed and withdrawn, being Mombasa Judicial Review Application No. E24 of 2023: Mercy Vosenah Musera v Public Procurement Administrative Board and Kenya Ports Authority and 3 Others. The principle is, of course, that once a decision has been made by a Court, it is only subject to any right of appeal to a superior court and cannot be revoked or varied by the decision-maker. It is noteworthy however that the case in question was withdrawn almost immediately upon filing on account of what Mr. Gikandi referred to as a mistake; in that the documents were erroneously filed before they were signed. The Court was yet to hear and determine the same on merit and therefore the argument that the Court is functus officio therefore untenable. Indeed, Order 25 Rule 1 of the Civil Procedure Rules, which counsel relied on is explicit that:“At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.”

B. On whether the respondent has the capacity to sue or be sued: [8]The 1st and 2nd interested parties also raised an objection to the application contending that the proceedings are incompetent because the respondent, being an unincorporated body, lacks the capacity to sue or be sued. The right to judicial review is anchored in Article 47 of the Constitution, for which purpose Article 260 defines a person as including a company, association or other body or persons whether incorporated or unincorporated. Additionally, Article 165(6) of the Constitution is explicit that the supervisory jurisdiction of the High Court encompasses decisions made by “…any person, body or authority exercising a judicial or quasi-judicial function…”

[9]Further to the foregoing, Parliament was mandated, under Article 47(3) of the Constitution to enact legislation that would provide for the review of administrative action by a court or if appropriate, an independent and impartial tribunal. The legislation has since been enacted in the form of Fair Administrative Action Act, No. 4 of 2015, which provides, in Section 7(2)(a) that the proper person to sue is “the person who made the decision”; in this case the PPARB. It is therefore my finding that the PPARB is the correct respondent in this instance. Needless to mention that counsel placed reliance on several authorities in which the PPARB was sued as the respondent notwithstanding that it is an unincorporated entity; some of which were determined by the Court of Appeal.

C. On the merits of the application: [10]Judicial review is largely concerned with the decision-making process and not the merits of the decision; granted that the role of the Court in judicial review is supervisory. It is not an appeal. This aspect was reiterated by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others [2023] KESC 6 (KLR) (Civ) (27 January 2023). Moreover, to succeed in an application for judicial review, the applicant must show that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety in addition to lack of proportionality. In the impugned decision, the respondent declined to entertain the application on the ground that it did not have jurisdiction so to do; and having perused and considered that decision, it cannot be said that it is ultra vires the powers of the respondent or that it is unreasonable. I have also perused the affidavit filed by the respondent and considered the applicable procedure in respect of Requests for Review vis-à-vis the grounds raised in the applicant’s Notice of Motion and the supporting affidavit filed at the leave stage and find no basis for holding that the respondent committed any procedural infraction in arriving at its decision.

[11]The decision may have been wrong, from the applicant’s standpoint, but the Court is not here concerned with the merits of the decision. Indeed, the Court has no power to substitute its own decision with that of the respondent. Similarly, the Court has no power to nullify the awards, considering that the same were not the object of the judicial review application. That aspect was pleaded as a consequential outcome in the event of the quashing of the respondent’s decision and therefore must also fall by the wayside.

[12]In the result, I find no merit in the Notice of Motion dated 2nd October 2023. The same is hereby dismissed with an order that each party bears own costs thereof.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 9TH DAY OF OCTOBER 2023. OLGA SEWEJUDGE