[2017] KEHC 883 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

JUDICIAL REVIEW NO. 59 OF 2017

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

VERSUS

THE PUBLIC PROCUREMENT

ADMINISTRATIVE REVIEW BOARD...................................RESPONDENT

AND

KENYA PORTS AUTHORITY...............................1ST INTERESTED PARTY

YOBESH OYARO, ACCOUNTING OFFICER......2ND INTERESTED PARTY

AND

HIGAWA ENTERPRISES LIMITED.......................EX-PARTE APPLICANT

JUDGEMENT

1. By a Notice of Motion dated 24. 10. 17 Higawa Enterprises Limited the Ex-parte Applicant herein seeks the following judicial review orders:

a) THAT an order of Certiorari be issued to quash the decision made on 4th October, 2017 in Public Procurement Administrative Review Board Application No. 82 of 2017; Higawa Enterprises Limited v. Kenya Ports Authority and Another whereby the Respondent disallowed the Applicant’s application for review but directed the Interested Party to proceed with the procurement process of Tender No. KPA/112/2016-17/MO to its logical conclusion. For the avoidance of any doubt, it be declared that the awards made by the Interested Parties in respect of Tender No. KPA/112/2016-17/MO on 1st September 2017 are null and void and are of no legal consequence whatsoever.

b) Spent.

c) That the costs of this application and the Request for Review be awarded the Ex-parte Applicant to be paid by the Interested Parties.

2. The undisputed facts herein are that on 15th March 2017 Kenya Ports Authority, the 1st Interested Party advertised in the print media, various tenders which included Tender No. KPA/112/2016-17/MO (Preference Group) (“the Tender”) for the provision of cleaning and landscaping services. The Tender was opened on Friday 7th April 2017 in which a total of 225 bidders including the Ex-parte Applicant submitted bid documents. The tender document did not contain the tender validity period. By a letter dated 11. 7.17 the 2nd Interested Party informed all bidders of 4 tenders that the tender validity period had been extended for a further 30 days from 16. 7.17. The tenders are;

i) Tender No. KPA/lll/2016-17/MO - Provision of cleaning and landscaping services

ii) Tender No. KPA/112/2016-17/MO - Provision of cleaning and landscaping services (Preference group)

iii) Tender No. KPA/113/2016-17/ADM - Provision of housekeeping services

iv) Tender No. KPA/114/2016-17/ADM - Provision of housekeeping services (Preference Group)

3. By a letter dated 1. 9.17 the 2nd Interested Party informed the Ex-Parte Applicant that its bid was not successful. The Ex-Parte Applicant being aggrieved by this decision filed a Request for Review dated 11. 9.17 with the Respondent Public Procurement Administrative Review Board Application No. 82 of 2017 which was disallowed by a decision of 4. 10. 17. The Respondent stated that the 1st Interested Party was at liberty to proceed with the procurement process of the Tender to its logical conclusion.The Ex-Parte Applicant has by these proceedings challenged the decision of the Respondent seeking that the same be quashed.

4. The grounds for the application are that the tender validity period in the Tender was not provided. Section 17. 1 of the tender document provided that, "Tenders shall remain valid for the period specified in the Tender Data Sheet after the deadline for Tender Submission Specified in ITT Clause 21. A………". However, the Interested Parties did not annex the Tender Data Sheet. The Ex-Parte Applicant avers that the purported extension of the validity period of the Tender by the Interested Parties was null and void; that even if the purported extension was lawful, the same lapsed on 16. 8.17. As such, the award made by the Interested Parties in respect of the Tender on 1. 9.17 after the purported extension had lapsed was null and void. According to the Ex-parte Applicant it is not tenable for the Interested Parties to make any awards in respect of the Tender.

5. Given the foregoing, the Ex-parte Applicant is of the view that the decision made by the Respondent lacks logic. Having found that the tender document was not clear as regards the validity period the Respondent ought not to have validated the award but should have asked the Interested Parties to retender. Instead, the Respondent issued a directive whose compliance would be to violate the law. The Ex-parte Applicant avers that in order to achieve a transparent system of procurement as required under Article 227 of the Constitution, 2010, it is important that the Interested Parties should set out to achieve a certain measure of precision in the tender documents and not leave important matters for speculation and conjecture as was the case in this matter.

6. TheEx-parte Applicant further contends that the provisions of Sections 87, 88 and 135 of the Public Procurement and Assets Disposal Act, No. 33 of 2015, “the Act” clearly provide for a tender validity period. Articles 10, 47, 201 and 227 of the Constitution of Kenya, 2010 require officers, such as the Respondent, to act in an accountable and transparent manner so as to uphold the rule of law, transparency, accountability and good governance. The Respondent's decision directing the Interested Parties to proceed with the award made in respect of the Tender which lacked a validity period and or whose validity period had lapsed was in contravention of the aforesaid Constitutional provisions. The Ex-parte Applicant prayed that the orders sought herein be granted.

7. The Respondent filed no response to the Application. For their part, the 1st and 2nd Interested Parties opposed the Application by way of a Preliminary Objection and Grounds of Opposition dated 20. 11. 17 and filed on 21. 11. 17. The grounds are that the Application is hopelessly incompetent for failing to comply with the express provisions of Order 53(3) and (4) of the Civil Procedure Rules. The Application is in fact an attempted appeal against the decision of the Respondent on the basis of merits of the case which is outside the ambit of Judicial Review proceedings and outside the jurisdiction of the Court. The Ex-ParteApplicant has failed to demonstrate how the decision of the Respondent was tainted with illegality, irrationality or procedural impropriety. The Application is frivolous, vexatious and an abuse of the Court process and should be dismissed with costs.

8. In a Replying Affidavit sworn on 21. 11. 17 and filed on even date, Anne Otit the Ag. Senior Procurement Officer of the 1st Respondent averred that in the tender advertisement prospective bidders were advised to regularly visit the KPA website to obtain any additional information/addendum on the tenders, and that this information was reiterated in Section I: Invitation for Tenders, Clause 6 which is located at Page 7 of the Tender Document.

9. It was averred that the Tender was opened on Friday 7. 4.17 and the 1st Interested Party carried out a comprehensive technical evaluation between 18. 4.17 and 13. 5.17. Out of the 225 bidders who submitted their documents, 77 bidders who included the Applicant attained the minimum score of 75% and progressed to the financial evaluation stage. The Financial evaluation was carried out after the bids were opened on 30. 5.17 and financial evaluation and the Ex-parte Applicant was found not have submitted the lowest evaluated financial bid. The Tender being a special tender targeting preference groups under the government policy was not subject to the mandatory requirement of providing a tender security.

10. It is the Interested Parties’ case that the tender evaluation process was completed within the tender validity period which was extended by dint of the letter dated 11th July 2017. In compliance with Section 88(2) of the Act 2015 the extension of the validity period was communicated to the bidders in a letter dated 11. 7.17. This letter was placed in the website which is allowed by Section 64 of the Act as a notice to all bidders. She avers that the Interested Parties did not selectively notify some of the bidders as alleged by the Applicant. It was further averred that the Applicant was duly notified that its bid was not technically responsive as required by Section 87 (3) of the Public Procurement and Assets Disposal Act 2015. According to the Interested Parties, the Respondent applied the correct principles in dismissing the Applicant's Request for Review since the Ex-parte Applicant had filed an incompetent application by enjoining the 2nd Interested Party and further that the 1st Interested Party completed the process within the tender validity period.

11. For the Ex-Parte Applicant it was submitted that by virtue of Section 175 of the Act the appeal from the Respondent assumes the character of a Judicial Review. This court is therefore entitled to review all the evidence that was availed before the board and make its dependent evaluations thereon; that the Court of Appeal set out the law relating to judicial review orders of certiorari, prohibition and mandamus in Kenya National Examination Council v. Republic Ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR. An order of certiorari is issued when the applicant demonstrates that the decision complained off was made illegally, irrationally or against procedural propriety.

12. It is well settled law that judicial review proceedings are concerned with the decision making process, not with the merits of the decision itself. Therefore this court is only mandated to examine the record of the Respondent and satisfy itself that in coming to its decision, the Respondent has not exposed itself to demonstrated charges of illegality, irrationality and procedural impropriety so as to be beyond reproach within the parameters set for judicial review.

13. It is the Ex-parte Applicant’s contention that in light of the material that was placed before it, the Respondent on proper application of the law and evidence should have nullified the awards that were made by the Interested Party in respect of the tenders in question. Further Article 175 (1) of Act, provides for an appeal process from the decision of the Respondent to the High Court with clear timelines. As such, it is erroneous for the Interested Parties to argue that an Applicant can prefer an appeal by filing a direct appeal. It was further submitted that a judicial review application from the Respondent is a special kind of a judicial review in that the court has to examine the record of the Respondent and satisfy itself that in coming to the decision it did, the Respondent did not expose itself to the charges of illegality, irrationality or procedural impropriety.

14. The Ex-parte Applicant further relied on the decision in Law Society of Kenya vs Commission of Inquiry on Tribal Clashes in Kenya in which the Court applied the principle that has now come to be known as Wednesburry's unreasonablenesswhich, if demonstrated, entitles the Court to grant relevant judicial orders. The said principle is the principle of the "Three Is" (3 Is) namely: Irrationality, illegality or procedural impropriety.

15. It was submitted that in the case of Blue Sea Services Ltd & another v. Public Procurement Administrative Review Board & another [2016] eKLR, the Interested Parties adopted the same procedural objection that the Ex-parte Applicant therein should have filed an appeal and not a judicial review. The Court in dismissing the objection stated that the court is therefore only mandated to examine the record of the Respondent and satisfy itself that in coming to the decision it did, the Respondent has not exposed itself to demonstrated charges of illegality, irrationality and procedural impropriety."

16. The Ex-parte Applicant asserts that the Respondent's decision made on 4. 10. 17, 2017 was illegal, irrational, and procedurally improper. The same amounted to an abdication of the Respondent's responsibility for upholding the awards made by the Interested Parties outside the tender validity period which is in violation of Section 87 (1) of the Public Procurement and Assets Disposal Act.

17. The Ex-parte Applicant argues that by a letter dated 11. 7.17 the Interested Parties purported to extend the validity period for 4 tenders namely, Tender Nos. KPA/111/2016-17/MO, KPA/112/2016-17/MO, KPA/ 113/2016-17/ADM and KPA/114/2016-17/ADM. The award in Tenders Nos. KPA/111/2016-17/MO and KPA/ 113/2016-17/ADM were challenged by means of Requests for Review with the Respondent. The Respondent nullified the said awards which were made therein, pursuant to the aforesaid letter extending the tender validity period. The Ex-parte Applicant argues that it was therefore unreasonable for the Respondent to disallow the Applicant's review in respect of the Tender when the facts herein are similar to the ones in the said 2 tenders. Clearly, the Respondent has failed the test of consistency.

18. The E-parte Applicant further submits that the tender validity period expired on 7. 7.17 as such the purported extension by a letter dated 11. 7.17 was null and void as the tender had expired and it contravened Section 88 (2) of the Act. The Ex-parte Applicant relied on the decision in Review No. 2 of 2010; Zhongman Petroleum & Natural Gas Group Limited v. Equipment Company Ltd & another, where it was held that "once tender validity expires, the tender dies a natural death." To the Ex-parte Applicant, the Interested Parties having failed to extend the tender validity period before the 7. 7.17 the Tender had died as such, the Respondent's decision allowing the awards made by the Interested Parties on a non-existent tender is ipso-facto unlawful and ought to be declared as such.

19. It was further argues that even if the extension of the tender validity period to 16. 8.17 were lawful, then the award of the Tender ought to have been made before that date. However, the tender was awarded on 1. 9.17, 14 days after the expiry of the tender validity period. It was therefore erroneous for the Respondent to hold that the validity period of the Tender was indeterminate for to so hold renders the date of 16. 8.17 a date that has no value in so far as the validity period of the said tender is concerned.

20. The Interested Party is a state organ and is obliged under Article 10 of the Constitution of Kenya, 2010 to act in an accountable, transparent and credible manner. The Interested Parties voluntarily declared to the general public that the tender validity period would be 16. 8.17. The Interested Parties were estopped from reneging on the written promise it made to the public regarding the tender validity period. Section 120 of the Evidence Act was cited in support of the above submission. Also relied upon was the decision in Benjamin Ayiro Shiraku v. Eozia Mohamed [2012] eKLRwhere the court upheld the dictum of Denning LJ in the case of Combe v. Combe [1951] 2 KB 215 where it was stated, "..the principle, as I understand it, is that, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then once the other party has taken him at his word and acted on it, the one who gave a promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration but only his word."

21. Also relied upon is the decision of Moorgate Mercantile Co. Limited vs Twitchings [1976] 1 Qb. 225at page 241, (as cited in John Mburu v Consolidated Bank of Kenya [2015] eKLR, where Lord Denning MR expressed himself thus, when discussing "Estoppel by Conduct;" "Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so. Dixon J. put it in these words: 'The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he caused another party to adopt or accept for the purpose of their legal relations'.

22. It was further submitted that if one was to assume without admitting that there was no tender validity period for the Tender and that the letter dated 11. 7.17 had no legal effect at all, the award made in the Tender there would be illegal because under Section 87 (4) of the Act, a tender must have atender validity period. Indeed, this is the reason the tender document contained clause 17. 1 indicating that there is a tender validity period which will be specified in the tender data sheet. The case of Judicial Service Commission v. Gladys Boss Shollei & another [2014] eKLR was relied on where the Court found that the burden of proving a fact is borne by he or she that alleges.The Interested Party did not prove that the tender validity period was indeterminate and it was therefore unreasonable for the Respondent to so hold, when there did not exist evidence supporting that holding.

23. Citing the case of Republic v. Public Procurement Administrative Review Board & 3 others Ex-parte Olive Telecommunication PVT Limited [2014] eKLR it was argued that having made a finding that the tender validity period was indeterminate, it was illegal for the Respondent to uphold a tender without a validity period when the law requires that the same be specified. The Court therein found that, "...the Board may have indeed found a shortcoming in the definition of an OEM provided by the PE. We are of the view, that in order to achieve a transparent system of procurements as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language in the tender documents and not leave important matters for speculation and conjecture as was the case in this matter."

24. Having found that it was not clear to determine tender validity period, the only logical order which was available to the Respondent was to nullify the awards and order for a fresh tendering process. Indeed, this was the holding in Olive Telecommunication Case Suprawhere the court held, "It is our view that in order to strive towards the achievement of the constitutional principles and values enunciated in Article 227 of fairness, equity, transparency, competitiveness and cost effective as well as the statutory aim in Section 2 of the Act of increasing public confidence in procurement procedures, the tendering process which was conducted by the r' Interested Party herein ought to be and is hereby annulled and the tendering process is set aside in its entirety. The Ist Interested Party if minded to undertake a similar project should do so de novo in accordance with the Act and Regulations."

25. The question was posed as to what purpose will be achieved in allowing an application for judicial review or not. The whole structure of the law relating to procurement is one that has put in place a mechanism of ensuring that there is accountability, transparency and fairness so as to prevent corruption in the procurement process. However, the Respondent made a finding that the tender was indeterminate and could not be faulted on its validity. If such a decision was allowed to take root, it will give room for corruption in the procurement processes as the decision of the Respondent indicates that the procuring entities can undertake tendering processes in a casual manner. As such, this court needs to come up with a decision that will ensure the spirit of Articles 10 and 227 of the Constitution of Kenya, 2010 are given full effect.

26. The conclusion of the submissions for the Ex-parte Applicant was that the award by the Interested Party in respect of the Tender on 1. 9.17 was unlawful in light of the fact that the expiry date was 7. 7.17 and even if one was to be very generous to the Interested Party at least the 16. 8.17. The award made after that date is clearly illegal. In Mistry Amar Singh vs Serwano Wofunira Kulubya UCA No. 74 of 1960 the Court inter-aliahad this to say: "Ex Turpi Causa Non Oritio Actio. This old and well known legal maxim is founded in good sense and expresses clear and well organized legal principle which is not confined to indictable offences. No court ought to enforce an illegal contract, or allow itself to be made an instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is brought to the attention of the court and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the Plaintiff has pleaded the illegality or whether he has not. If the evidence adduced by the Plaintiff proves the illegality the court ought not to assist him".

27. In sum according to the Ex-parte Applicant, the said award falls under the head of illegality above and the same ought not to be allowed to stand. In the circumstances this court is entitled to quash the decision made by the Respondent so that the award made by the Interested Party on 1. 9.17 stands quashed.

28. For the Interested Parties it was submitted that the Ex-Parte Applicant is seeking a review of the merits of the decision of the Respondent rather than a review of the process. It was argued that the parameters of Judicial Review Proceedings were clearly set out by the Court of Appeal in Municipal Council of Mombasa vs. Republic and Umoja Consultants Ltd. Civil Appeal No. 185 of 2001 in which it was held that:

"Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision, the decision maker took into account relevant matters or did take into account irrelevant matters.... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision."

29. It was further submitted that the Respondent dismissed the Request for Review on the basis that the application was incompetent for having wrongly enjoined the 2nd Interested Party contrary to Sections 2 and 170 of the Public Procurement and Assets disposal Act 2015. The second reason for dismissal of the Request for Review is that the Respondent further found that the tender was not awarded outside the validity period as the tender period was indeterminate from the tender document and the applicant could not therefore allege that the tender was awarded outside the tender validity period . The Respondent also found that the Applicant's bid was not the lowest evaluated and no evidence was tendered to demonstrate how it had the lowest evaluated bid.

30. The Interested Parties contend that, the question as to whether the Tender was awarded outside the validity period was dealt with by the Respondent as the proper body that has the jurisdiction and the technical competence to deal with it. The Applicant by participating in the Request for Review proceedings were accorded an opportunity to be heard. The Respondent on its part, was presented with all the facts and made its findings based on the material placed before it and as clearly elucidated in the impugned decision took into account all the submissions of Learned Counsel for the Applicant. The Interested Parties further submit that the Ex-parte Applicant has not demonstrated in what way the Respondent took into account irrelevant matters or failed to consider relevant matters to warrant this court exercising judicial discretion in its favour.

31. The case of Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited Iothers T20121 eKLR to support the argument that the Respondent is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity.

32. On the assertion by the Ex-parte Applicant that the Respondent has acted illegally is not by itself sufficient ground to require you to exercise judicial discretion in its favour. The case of Republic v Kenya Power & Lighting Company Ltd & another [2013] eKLR was citedwhere Korir, J. stated that:

"It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of the rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted."

33. It was further submitted that the Ex-parte Applicant being aggrieved by the decision of the Respondent should have chosen another avenue to address its concerns with the decision of the Respondent, under Section 174 of the Act which prescribes any other legal remedy available. In addition, Section 175 of The provision employs the word "may"rather than "shall"indicating that parliament envisaged that the Applicant can prefer a direct appeal against the decision of the Respondent in the event it needs to base its appeal on the merits of the decision.

34. The Interested Parties relied on the finding in the case in OJSC Power Machines Limited, Transcentury Limited and Civicon Limited (acting jointly as a consortium/joint venture) vs Public Procurement Administrative Review Board [2016] eKLR,where Justice G V Odunga held as follows:

"Having considered the issues raised herein it is my view that the grounds advanced by the Applicant ought to have been the subject of an appeal as opposed to judicial review. As was appreciated by this court inRepublic vs. Business Premises Rent Tribunal & 3 others Ex-Parte Christine Wangari Gachege 120141 Eklr:

"....in this case it is no doubt that the decision which is being challenged in these proceedings were the subject of an application for setting aside which decision was disallowed by the Respondent. Whether that decision was right or not the Applicant ought to have appealed against the same instead of challenging the decision in respect of which attempt to set aside had failed. In Judicial Review proceedings the mere fact that the Tribunal's decision was based on insufficient evidence, or misconstruing of the evidence which is what the applicant seems to be raising here or that in the course of the proceedings the Tribunal committed an error are not grounds for granting judicial review remedies. In reaching its determination, it must however, be recognized that a Tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate Tribunal which is empowered and in fact enjoined in cases of the first appeal to re­evaluate the evidence presented at the first instance and arrive at its own decision on facts of course taking into account that it had no advantage of seeing the witnesses and hearing them testify. Whereas a decision may properly be overturned on an appeal it does not necessarily qualify as a candidate for judicial review."

35. In view of the forgoing, the Interested Parties concluded that the Ex-parte Applicant has failed to establish why it is entitled to the relief of certiorarias sought.

36. On the issue of costs, it was submitted that Section 175 (7) of the Act is very clear that this Honourable court does not have the power to impose costs on any party as far as these proceedings are concerned. Further, regarding the proceedings before the Respondent, the Ex-parte Applicant is still not entitled to costs since its bid in the Tender not being the lowest evaluated was not successful. The Ex-parte Applicant being an unsuccessful bidder is not an aggrieved person within the meaning of Section 167 (1) of the Act. The Ex-parte Applicant has not demonstrated what loss or damage they suffered or risk suffering due to a breach on the part of the interested parties of a duty imposed on them by the statute. In addition, as found by the Review Board, the application was incompetent ab initiofor having sued the wrong entity contrary to Sections 2 and 170 of the Public Procurement and Asset Disposal Act 2015. The Ex-parte Applicant is therefore not entitled to costs.

37. Parties filed and highlighted their submissions as directed by the Court. The Respondent did not however file any submissions and aligned itself to the submissions of the Interested Parties. In their submissions, parties came up with the following summarized issues for determination which I hereby adopt:

a) Whether the Interested Parties awarded the Tender outside the tender validity period

b) Whether the Ex-parte Applicant is entitled to the judicial review order sought herein

c) Whether the Ex-parte Applicant entitled to costs as prayed

38. Prior to analyzing the issues raised it is necessary to point out that the Respondent is the duly mandated public body with jurisdiction to hear and determine requests for review under Section 28 of the Act. The Respondent in considering the Request for Review by the Ex-parte Applicant did not act ultra vires its mandate. This fact is not contested.

39. It was submitted for the Interested Parties that the Respondent found that the Request for Review was incompetent for joining the 2nd Interested Party and not the accounting officer of the 1st Interested Party as required under Section 170 of the Act. The Ex-parte Applicant countered this by arguing that when a principle is known it can be sued instead of the agent. The Act does state who the parties to review proceedings shall be and for a procuring entity it shall be the accounting officer. The Respondent upheld the preliminary objection raised by the Interested Parties and found the Request for Review incompetent. In spite of this, the Respondent proceeded to consider an application it found incompetent. This in itself is an abuse of the Respondent’s own process. My view is that the joinder of the 2nd Interested Party is a procedural technicality as contemplated in Article 159(2)(d) of the Constitution of Kenya 2010 which ought not be given undue regard. It would appear to me that the Respondent was of the same view and that is why perhaps after finding the request for review incompetent the Respondent did not down its tools but went ahead and considered all the other issues raised therein.

Whether the Interested Parties awarded the Tender outside the tender validity period

40. The Ex-parte Applicant’s case is that there was no tender validity period for the Tender and further even after the Interested Parties purported extension of the tender validity period to 16. 8.17, they still awarded the Tender on 1. 9.17 outside the extended tender validity period rendering the award illegal. The gravamen of the Ex-parte Applicant’s complaint is that the purported extension of the validity period of the Tender by the Interested Parties was null and void; that even if the purported extension was lawful, the same lapsed on 16. 8.17. As such, the Respondent ought to have nullified the tender award.

41. Clause 17. 1 of the tender document provided that:

"Tenders shall remain valid for the period specified in the Tender Data Sheet after the deadline for Tender Submission Specified in ITT Clause 21. ”

The Interested Parties however did not annex the Tender Data Sheet referred to in Clause 17. 1 of the tender document. The effect of this omission is that the Tender had no tender validity period or the same was indeterminate. The Interested Parties addressed a letter dated 11. 7.17, to all bidders of Tender Nos. KPA/111/2016-17/MO, KPA/112/2016-17/MO, KPA/ 113/2016-17/ADM and KPA/114/2016-17/ADM. The said letter stated as follows:

“Pursuant to Section 88(2) of the Public Procurement and Asset Disposal Act, 2015, the Authority requests all bidders who participated in the above tenders to extend tender validity by further 30 days effective from 16th July, 2017 to facilitate completion of tendering process.”

42. Section 88 of the Act provides for the extension of the tender validity period. The provision stipulates when the extension may be made and further that all bidders must be notified of the extension in writing:

(i) Before the expiry of the period during which tenders shall remain valid the accounting officer of a procuring entity may extend that period.

(ii) The accounting officer of a procuring entity shall give in writing notice of an extension under subsection (1) to each person who submitted a tender”

43. The foregoing provision permits the extension of the tender validity period but that extension must be made before the expiry of the already stipulated tender validity period. The Concise Oxford English Dictionary eleventh Edition defines extension inter alia as:

“An additional period of time given to someone to hold office or to fulfil an obligation.”

Extension presupposes a period specified. It is not disputed that the tender document herein did not contain the tender validity period. The Interested Parties’ letter of 11. 7.17 stated that the tender validity period is extended by a further 30 days. From when? On what basis therefore was a nonexistent or indeterminate tender validity period extended by the Interested Parties?

44. Further and even more critical, even assuming that the purported tender validity period was legal the same expired on 16. 8.17 which is 30 days from 16. 7.17. Section 87(1) of the Act provides:

“Before the expiry of the period during which tenders must remain valid, the accounting officer of the procuring entity shall notify in writing the person submitting the successful tender that his tender has been accepted.”

The Interested Party awarded the Tender on 1. 9.17 which about 14 days of expiry of the extended tender validity period. Upon expiry of the tender validity period, there was no tender in existence capable of being awarded. It is therefore manifest that the Tender award having been done after expiry of the extended tender validity period was illegal and therefore null and void.

Whether the Ex-parte Applicant is entitled to the judicial review order sought herein

45. Citing the Court of Appeal in Municipal Council of Mombasa vs. Republic and Umoja Consultants Ltd. Civil Appeal No. 185 of 2001, it was submitted for the Interested Parties that judicial review is concerned with the decision making process, not with the merits of the decision itself. For the Ex-parte Applicant, it was argued that judicial review order will be granted if the Applicant demonstrates the 3 “I”s of illegality, irrationality and procedural impropriety.

46. In order to determine whether the Ex-parte Applicant has met the threshold for granting judicial review orders, this Court must satisfy itself that the requirements set out in the Ugandan case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 have been fulfilled. The Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held:

“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 ...Illegality is when the decision-making authority commits an error of law in the process of taking 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. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission... 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...Procedural Impropriety is when there is a 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.”

47. As stated above, the Interested Parties awarded the Tender on 1. 9.17 which was challenged by the Ex-parte Applicant in its request for Review before the Respondent. The Respondent in its decision stated:

“As already observed by the Board, the last day of validity for this tender was not specified in the tender conditions. It is not in doubt that the tender subject of this Request for Review was opened on 7th April 2017. It is further not in doubt that the Procuring Entity, vide the letter dated 11th July 2017, sought to extend the validity period of the subject tender. It is not contested that the tender was awarded on 1st September, 2017.

The Respondent then curiously found:

It is the finding of the Board that the tender validity period having been indeterminate, it cannot be said that the tender was awarded outside the tender validity period. This ground of review therefore fails and is disallowed.”

48. There is gross unreasonableness in the above decision taken by the Respondent. Having found that the tender validity period was indeterminate, it was unreasonable and irrational for the Respondent to find that it cannot be said that the tender was awarded outside the tender validity period. It was therefore neither reasonable nor rational for the Respondent to have upheld the award of the Tender. The Respondent ought to have found that because there was no tender validity period in the Tender, the Interested Parties violated the provisions of both Sections 87 and 88 of the Act and indeed their own tender documents which provided that the tender validity period was as stated in the Tender Data Sheet yet that was not the case. Indeed for this reason the Respondent ought to have allowed the Request for Review. However the Respondent chose to uphold the illegal award of the Tender.

49. From the foregoing, it is clear that the Interested Parties as the decision-making authority committed an error of law in the process of awarding the Tender which is the subject of the complaint herein. The letter dated 11. 7.17 extended the tender validity period to 16. 8.17 yet the Tender was awarded on 1. 9.17. This is contrary to the express provisions of Section 87(1). Having awarded the Tender on 1. 9.17, 14 days after the expiry of the tender validity period, there is manifest illegality in the decision of the Interested Parties in the award of the Tender.

50. For the reasons stated above, the award of the Tender is illegal as it contravenes the express provisions of the Act. The Respondent having found that the tender validity period was indeterminate the logical conclusion of the matter was to nullify the tender award. By dismissing the Request for Review, the Respondent in effect allowed itself to be made an instrument of enforcing an illegal. This was against the injunction in Mistry Amar Singh vs Serwano Wofunira Kulubya UCA No. 74 of 1960 where the Court had this to say on the maxim of ex turpi causa non oritio actio.

“This old and well known legal maxim is founded in good sense and expresses clear and well organized legal principle which is not confined to indictable offences. No court ought to enforce an illegal contract, or allow itself to be made an instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is brought to the attention of the court and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the Plaintiff has pleaded the illegality or whether he has not. If the evidence adduced by the Plaintiff proves the illegality the court ought not to assist him".

51. That brings me to the issue whether the Court is entitled to reverse a decision of the Respondent where there is no irregularity in its decision-making process but the order made by itself is irrational and unreasonable. The Respondent clearly found that the tender document did not contain a tender validity period but went ahead and stated that because of that the tender cannot be said to have been awarded outside the tender validity period. The Respondent as a reasonable authority, addressing itself to the facts and the law before it, ought not to have upheld the award of the Tender. This finding of the Respondent is in my view irrational and it would be an abdication of the Court’s supervisory powers to allow such irrational decision to stand.

52. Judicial review is a tool of justice. Where Courts are called upon to make interventions in cases such as the present one, where authorities contravene clear provisions of the law in their decision making and act contrary to legitimate expectations, Courts must resist being rigidly chained and look at the nature of the matter before them. This is as was held by Nyamu, J. in Republic vs The Commissioner of Lands Ex Parte Lake Flowers Ltd where he opined:

“….Although judicial review has been bequeathed to us with defined interventions namely illegality, irrationality and impropriety of procedure the intervention has been in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations…..Even on the principle of establishing standing for the purposes of judicial review the courts must resist being rigidly chained to the past defined situations of standing and look at the nature of the matter before them….Judicial review is a tool of justice, which can be made to serve the needs of a growing society on a case to case basis……”

53. The tender validity period goes to the root of the award of the tender. This period is a critical factor in determining whether a tender is validly awarded or not. Failure by a procuring entity to state the tender validity period in any tender in my view would render any award therein a nullity. The tender validity period further determines by what date if it is found necessary, a tender validity period may be extended under Section 88(1) of the Act. In the present case, the tender validity period not being indicated in the tender document was unknown or indeterminate. The indeterminate tender validity period was purportedly extended on 11. 7.17 for a period of 30 days to 16. 8.17. No one is able to tell whether this purported extension was within the tender validity period and therefor within the law.

54. The Interested Parties were duty bound to uphold the national values contained in Article 10 of the Constitution of Kenya 2010 in dealing with the Tender. This obligation is specifically imposed on a procuring entity in contracting for goods and services by Chapter Twelve on Public Finance of the Constitution. Article 226(1) in Part 6 thereof on Control of Public Money provides:

“When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.”

55. Section 3 of the Act requires that public entities shall be guided by the principles of inter alia public finance under Article 201 of the Constitution. Article 201 demands openness and accountability in financial matters. Openness is an overarching concept that is characterized by an emphasis on transparency and free, unrestricted access to knowledge and information. Failure to provide the tender validity period in the contract negated the openness transparency and predictability contemplated in the Constitution and the Act.

56. In Republic v. Public Procurement Administrative Review Board & 3 others Ex-parte Olive Telecommunication PVT Limited [2014] eKLR the Court stated:

"... We are of the view, that in order to achieve a transparent system of procurements as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language in the tender documents and not leave important matters for speculation and conjecture as was the case in this matter."

57. The omission of the tender validity period in the tender document resulted in a failure to “achieve a certain measure of precision” in the tender and left the important matter of the tender validity period for speculation and conjecture. This omission also opened the door for the Interested Parties to arbitrarily extend the same as nothing in the tender document would afford any party an opportunity to accuse the Interested Parties of extending the Tender out of time. Further upon the award of the Tender, in the absence of a tender validity period, the Interested Parties could not be challenged for doing so out of the stipulated time. This is a further open door for arbitrary action and indeed corruption. Any arbitrary action in the tendering process suggests unfairness and opacity which militate against a system that is fair and transparent and corruption-free. A tender award is vitiated by a process that is not fair and transparent. It was therefore illegal for the Respondent to uphold a tender award done in such an opaque manner without a tender validity period when the law requires that the same be specified.

58. For the foregoing reasons, this Court cannot disregard a decision that is irrational, illogical or fraught with procedural impropriety and allow the same to stand just because the decision-making process cannot be faulted. I therefore find that this Court is properly within its mandate to make a determination on the decision made by the Respondent based on the 3 I’s. Further, the illegality of the Tender has been brought to the attention of the Court. This Court should not enforce an illegal tender contract, or allow itself to be made an instrument of enforcing the illegal tender. I conclude by borrowing the words words of the Court in Olive Telecommunication PVT Limited case (supra). By allowing the award of the Tender to stand “this Court would have abetted an illegality. This Court cannot countenance illegalities 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 to do so.”

59. Whether the Ex-parte Applicant entitled to costs as prayed

Section 175(7) of the Act provides that where the decision of the Review Board has been quashed, the High Court shall not impose costs on either party. This the Exparte Applicant conceded in submissions. The Exparte Applicant however prayed for costs for the Request for Review. The Act gives power to the Respondent to award costs upon conclusion of a review. Section 173 provides:

“Upon completing a review, the Review Board may do any one or more of the following—

(d) order the payment of costs as between parties to the review in accordance with the scale as prescribed;”

60. Costs follow the event and the award of costs is discretionary. The discretion must, however, be exercised judicially and not capriciously or whimsically but upon defined legal principles. The Respondent exercised its discretion to order that each party bears its own costs. It has not been shown that the decision of the Respondent on costs was made capriciously or whimsically. In the circumstances, this Court has no basis to interfere with the Respondent’s order on costs.

61. Having evaluated all the material placed before me, I do find that the Ex-parte Applicant has satisfied the requisite threshold for the granting of the orders sought. I therefore make the following orders:

a) An order of Certiorari be and is hereby issued to quash the decision made on 4. 10. 17 in Public Procurement Administrative Review Board Application No. 82 of 2017 Higawa Enterprises Limited v. Kenya Ports Authority & Another.

b) The award made by the Interested Parties in respect of Tender No. KPA/112/2016-17/MO on 1. 9.17 is null and void and is of no legal consequence whatsoever.

c)There shall be no order as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 7th day of December 2017

__________

M. THANDE

JUDGE

In the presence of: -

……………………for the Ex-parte Appellant

……………………for the Respondent

……………………for the Interested Parties

……………………Court Assistant