[2015] KEHC 7605 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND JUDICIAL REVIEW DIVISION

MISCELLANEOUS CIVIL APPLICATION NO. 168 OF 2014

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

AND

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

AND

IN THE MATTER OF: REQUEST FOR PROPOSALS NO. NCC/ICT/RFP/113-2013-2014 FOR SUPPLY, INSTALLATION, CONFIGURATION, AND IMPLEMENTATION OF DATA CENTRE AND STRUCTURED CABLING INFRASTRUCTURE

AND

IN THE MATTER OF: A DECISION BY THE PUBLIC

PROCUREMENT ADMINISTRATIVE REVIEW BOARD IN APPLICATION NO. 10/2014 OF 9TH APRIL 2014

AND

IN THE MATTER OF: AN APPLICATION BY SEVEN SEAS TECHNOLOGIES LIMITED FOR ORDERS OF CERTIORARI

BETWEEN

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

AND

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD.................1ST RESPONDENT

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

LANTECH (AFRICA) LIMITED......................................................................INTERESTED PARTY

EX-PARTE: SEVEN SEAS TECHNOLOGIES LIMITED

JUDGEMENT

By a Notice of Motion dated 15th May, 2014, the ex parteapplicant herein, Seven Seas Technologies Limited, seeks the following orders:

That an Order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, annul the award of the tender made by the procuring entity to Seven Seas Technologies Limited.

That and order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, bar Seven Seas Technologies Limited from further participating in the tender.

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

That an Order of Certiorari do issue removing to the High Court and quashing the entire decision of the Public Procurement Administrative Review Board made on 22nd April 2014, which decision purported to, inter alia, direct the procuring entity to extend the tender and the bid bond validity period.

That the costs of this Application be provided for.

Ex ParteApplicant’s Case

The same application was supported by a verifying affidavit sworn by Njeri Wachira, the Head of Legal and Corporate Affairs of the Applicant (hereinafter referred to as “Seven Seas”) on 6th May, 2014.

According to the deponent, on or about 3rd December 2013, Seven Seas submitted its proposal in regards to the 2nd Respondent’s Request for Proposals No. NCC/ICT/RFP/113-2013-2014 for Supply, Installation, configuration, and Implementation of Data Centre and Structured Cabling Infrastructure. After evaluation by the 2nd Respondent (hereinafter referred to as “the Procuring Entity) , Seven Seas was awarded the tender by the 2nd Respondent.

However, the Interested Party, Lantech (Africa) Limited (hereinafter referred to as “Lantech”) filed a request for Review of the tender with the Public Procurement Administrative Review Board (“the Board”) on 9th March 2014.

Thereafter, both Seven Seas and the Procuring Entity, filed their respective responses to the said Request for Review. However, before the substantive Request for Review could be heard by the Board, the Applicant filed a Notice of Preliminary Objection to the effect that the Application was time barred which objection upon hearing disallowed by the 1st Respondent (the Board) which found in its ruling of 22nd April 2014 that Application No. 10/2014 of 9th April 2014 was not time barred as,inter alia, the certificate of posting was one and it did not have a serial number, the name and address of the tenderers who were allegedly notified and the towns to which the notifications were sent.

According to the deponent, as it is judicially noticed that each post office has a unique and distinct postal code, and the Board’s decision that, inter alia, the town was not indicated in the certificate of posting is not sufficient ground for disregarding the certificate of posting which proved that all the parties had been notified on 19th March, 2014. In her view, having been notified on 19th March, 204, the Application No. 10/2014 of 9th April. 2014 was time barred, and the Board should not have proceeded to consider the purported merits of the application since it was not in dispute that the letter to the Interested Party bore the correct address and that the Interested Party was duly notified of the outcome of the tender.

To the deponent, the decision and ruling of the Board delivered on 22nd April, 2014 in Application No. 10/2014 of 9th April, 2014 regarding notification is unreasonable and so outrageous in its defiance of logic that no sensible tribunal applying its mind to the issue to be decided could have arrived at a similar decision.

It was further contended that the decision and ruling of the Board in the same Application purporting to bar the Applicant from participating in the tender is irrational and unreasonable to the extent that it purported to give the Board unlimited powers in deciding which parties can participate in tenders. Further, it was contrary to public policy and the intention of Parliament to the extent that it purported to allow the Board unfettered discretion in deciding which party can participate in a tender.

It was the ex parte applicant’s case that it is within the powers of this Honourable Court to quash the 1st Respondent’s said decisions which decisions are illegal, null and void. It is also within the powers of this Honourable Court to quash the decisions of the Board delivered on 22nd April, 2014, which decision purported to annul the award made to the Applicant.

It was disclosed that as a result of the decisions of the 1st Respondent, the Procuring Entity had been compelled to enter into negations with, inter alia, Interested Party with a view to formalising a contract hence there was every likelihood that in violation of the provisions of Public Procurement and Disposal Regulations Act and the Public Procurement & Disposal Regulations, 2006 (hereinafter referred to as “the Regulations”) made thereunder, the 2nd Respondent and the Interested Party might enter into negotiations and formalise a contract, an action which would expose the ex parte Applicant great financial loss occasioned by the Board delivering a decision and nullifying the award in favour of the Applicant when it had no jurisdiction for doing so.

It was submitted on behalf of the applicant that based on the evidence of posting on record it was irrational and unreasonable for the Board to find that Lantech was not served with the notification. Having been notified on 19th March, 204 through registered post, it was submitted that time begun to run on 20th March, 2014 and pursuant to Regulation 73(2)(c)(ii) of the Regulations the request for the review ought to have been filed within 7 days of notification hence the final day for doing so ought to have been 27th March, 2014. However the request was filed on 9th April, 2014, 14 days out of time hence was time barred and the Board had no jurisdiction to hear and determine the same. In support of this submission the applicant relied on R vs. Public Procurement Administrative Review Board and Others exp Seven Seas Techniques Limited JR No. 160 of 2014. Based on Council of Civil Service Unions vs. The Civil Service [1948] 3 All ER 935, it was submitted that the Board’s decision was illegal, irrational and illogical. To the applicant the mere fact that the town was not indicated in the certificate of posting was not a sufficient ground for disregarding the certificate of postage since each post office has a unique code hence it is impossible to misdirect a letter.

To the applicant the decision to bar it from further participating in the subject tender was illegal and based on Republic vs. Public Procurement Administrative Review Board & Anther ex parte Avante [2013] eKLR, it was submitted that the propriety o otherwise of the decision is irrelevant.

2nd Respondent’s Case

The 2nd Respondent, the Procuring Entity, on its part, supported the application.

According to it, Lantech filed a Request for Review with the Public Procurement Administrative Review Board on the 9th April, 2014 though it was notified of the outcome of the procuring process on the 19th March, 2014 through registered post as evidenced by the 2nd Respondent in Review Application No. 10/2014.

It was thus contended that the said Review application was filed far beyond the stipulated time (i.e.) after 22 days and that the allegation that the Interested Party was never notified was misleading as the notification (through registered post) was never returned to the 2nd Respondent unclaimed.

The Procuring Entity’s position was that the allegation that the Interested Party never received the notification due to the fact that it’s code number was not indicated was also misleading as it is common knowledge that no post office in Kenya shares a code number with another as correctly stated by the Applicant.

It was therefore asserted that the Board erred in finding that the Interested Party was never notified hence it is only fair and just that the findings of the Board be overturned and the Procuring Entity be allowed to continue with the procuring process since its operation in respect of Information Technology have been halted due to the findings of the 1st Respondent.

1st Respondent’s Case

In opposition to the application, the Board filed a replying affidavit sworn by Pauline O. Opiyo, its secretary on 4th June, 2014.

According to the deponent, the Board received the Interested Party’s Request for review on the award of Tender No. NCC/ICT/113/2013-2014 for Supply, Installation, Configuration and Implementation of Data Centre and Structured Cabling Infrastructure, on 9th April, 2014 and in response thereto Seven Seas filed a Notice of Preliminary Objection dated 16th April, 2014 which was received by the Board on the same day, based on a point of law to be determined in limineto the effect that the said Request for Review had been filed out of the prescribed period of time, the same was incompetent, bad in law and did not lie and as such ought to be struck out with costs.

After hearing both parties on 17th April, 2014, the Board determined the application for review and delivered its ruling on 22nd April, 2014 by which it allowed the Request for Review by Lantech and ordered that the award of the tender of NCC/ICT/REP/113/2013-2014 for Supply, Installation, Configuration and Implementation of Data Centre and Structured Cabling Infrastructure, to Seven Seas by the Procuring Entity in its notification of award dated 14th March, 2014, be annulled; that Seven Seas be disqualified from further participating in the tender, the subject matter of the Request for Review, for failing to provide a valid bid security and that the Applicant ought to have been disqualified in the preliminary evaluation stage; that subject to the provisions of Section 84 of the Public Procurement & Disposal Act, 2005, on negotiations Lantech’s prayer that the Board orders that the Procuring Entity do enter into a contract with Lantech or invites Lantech for negotiations, be disallowed as it was premature; that subject to the provisions of Section 84 of the Public Procurement & Disposal Act, 2005, the Procuring Entity be directed to complete the procurement process within the fifteen (15) days from the date of the decision and take steps to ensure that the tender and the bid validity periods including that of Lantech were extended for such period of time as was necessary to enable it complete the procurement in the event that it shall become necessary for the Procuring Entity to enter into any negotiations with Lantech; that each party shall bear its own costs of the Request for Review.

According to the Board, its decision was based on the findings that Lantech was not served with a notification as required by the provisions of Section 83(2) of the Act, and consequently the Preliminary Objection raised by the Applicant herein was disallowed and the 1st Respondent proceeded to determine the other issues on merit; that Seven Seas’ Bid Bond was valid for eighty three (3) days instead of ninety (90) days and the Evaluation Committee of the Procuring Entity ought to have disqualified it at the preliminary/evaluation stage pursuant to the provisions of Regulation 47(1) of the Regulations and Section 60 of the Act; and that the Procuring Entity breached the provisions of Section 82(5) of the Act by awarding the tender to Seven Seas on the basis of the criteria set out in Section 66(4) of the Act.

It was therefore contended that the decision by the Board was a decision made within its mandate, and the specific sections of the law on which its decision was pegged have been expressly pronounced in its decision hence the Applicant’s presentation that the Board acted ultra vires in making its decision lacked a basis in laws. Further, in making its decision, the Board considered only the provisions of the Act, the Regulations, and the facts presented before it by the Parties and no extraneous issues whatsoever were considered.

It was disclosed that the ruling delivered by the board on 22nd April, 2014 involved two Requests for Review, No. 7 of 2014 and No. 10 of 2014, which were consolidated but only for purposes of hearing and that the Applicant seeks to use one stone to kill the birds by seeking to quash two decisions of the board both nullifying the award of the tender No. NCC/ICT/REP/113/2013-2014 to the Applicant herein.

It was the Board’s case that in considering the application, the Applicant cannot seek to have the court quash the entire ruling of the Board dated 22nd April 2014 as there were separate applications and decisions based on separate grounds and different parties. To that extent, it was averred that the application was made in bad faith, had no merit and was only calculated to discredit the credibility of the Board.

In its submissions, the 1st Respondent Board contended that in reaching its decision, it was within its mandate and that the decision was sound and reasonable. Having found that Seven Seas did not qualify at the evaluation stage, it was submitted that it was prudent for the Board to disqualify them.

Interested Party’s Case

It was submitted on behalf of the interested party that in the proceeding before the Board, Seven Seas never sought to rely on the doctrine of judicial notice based on the postal code hence based on Gupta vs. Continental Builders Ltd [1978] KLR 83; [1976-80] 1 KLR 809hence the said principle is not available to the Seven Seas in these proceedings.

It was submitted that the Board’s decision was not based solely on the omission to indicate the town but also on the failure to comply with section 83(2) of the Act as read with Regulation 73(2)(c)(ii) of the Regulations.

It was further submitted that the Board’s decision to debar Seven Seas was based on its finding that the bid bond was only valid or 83 days as opposed to the required 90 hence exercised the powers conferred on it under section 98(a) of the Act.

By inviting Seven Seas to collect the letter by phone as oppose to the notification to the other bidders it was submitted that the Procuring Entity was guilty of preferential treatment contrary to section 82(5) of the Act.

Determinations

I have considered the application, the statutory statement, the affidavits, both in support of and in opposition to the application.

It ought to be noted that in judicial review proceedings as opposed to an appeal the Court is not entitled to re-evaluate the evidence presented with a view to arriving at its own decision. As was held in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001:

“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.”

Sufficiency of evidence must however be distinguished from lack of evidence at all. A decision made without any evidence at all rather than insufficiency of evidence may well be irrational and would invite a remedy in judicial review. In its decision, the 2nd Respondent made a finding of fact to the effect that Lantech was never notified of the decision by the procuring entity. I agree with the Board’s view that where service is disputed, the burden of proving that a notification was given lies with the procuring entity. This must necessarily be so since to expect the party disputing service to prove that in fact there was no notification would be to place an unnecessarily heavy burden on that party. . I appreciate that under Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya, “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” I also appreciate the legal maxim that omnia praesumuntur legitime facta donec probetur in contrarium(all things are presumed to have been legitimately done, until the contrary is proved). However, as was held by Seaton, JSC in the Uganda Case of J K Patel vs. Spear Motors Ltd SCCA No. 4 of 1991 [1993] VI KALR 85:

“The proving of a negative task is always difficult and often impossible, and would be a most exceptional burden to impose upon a litigant. The burden of proof in any particular case depends on circumstances in which the claim arises. In general the rule which applies is ei qui affirmat not ei qui negat incumbit probatio.It is an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons...As applied to judicial proceedings the phrase “burden of proof” has two distinct and frequently confused meanings, (1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond reasonable doubt; and (2) the burden of proof in the sense of adducing evidence...The onus probandirests, before evidence is gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone into, upon the party against whom the tribunal, at the time the question arises, would give judgement if no further evidence were adduced.”See Constantine Steamship Line Ltd vs. Imperial Smelting Corp [1914] 2 All ER 165 (H.L); Trevor Price vs. Kelsall [1975] EA 752 at 761;Phippson on Evidence 12th Ed Para 91; Phippson At Para 95.

Similarly, the Supreme Court of Uganda in Sheikh Ali Senyonga & 7 Others vs. Shaikh Hussein Rajab Kakooza and 6 Others SCCA NO. 9 of 1990 [1992] V KALR 30 was of the view that the general rule that he who alleges must prove applies and since it was the appellants who were alleging that the fifth appellant was qualified, to hold that the negative must be proved by the respondents would be to impose an unnecessary burden on them.

The Board in its decision found that the certificate of posting did not have a serial number, the name and address of the tenderers who were allegedly notified and the Towns to which the notifications were sent. It was these inconsistencies that partly informed the Board’s decision to disallow the preliminary objection. Seven Seas however contends that since the postal addresses were correct and the postal codes were indicated, that decision was irrational, illogical and unreasonable. The Board further found as a fact that some of the addresses were incorrect. Section 83(2) of the Act enjoins the Procuring Entity to notify all persons who submitted proposals and whose proposals were not successful at the same time as the person whose bid was successful. It is not in doubt that under Regulation 73(2)(c)(ii) of the Regulations a request for review is required to be filed within 7 days from the date of occurrence of a breach or date of notification. That notification clearly must be the notification contemplated under section 83(2) of the Act and for the said notification to be complete, all the parties ought to be notified at the same time. In this case the Board having found that some of the bidders were not notified, it is my view that the Board’s decision in disallowing the preliminary objection cannot be faulted.

Apart from that, it is not mere unreasonableness which would justify the interference with the decision of an inferior tribunal. It must be noted that unreasonableness is a subjective test and therefore to base a decision merely on unreasonableness places the Court at the risk of determination of a matter on merits rather than on the process. In my view, to justify interference the decision in question must be so grossly unreasonable that no reasonable authority, addressing itself to the facts and the law would have arrived at such a decision. In other words such a decision must be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it. Therefore, whereas that the Court is entitled to consider the decision in question with a view to finding whether or not the Wednesbury test of unreasonableness is met, it is only when the decision is so grossly unreasonable that it may be found to have met the test of irrationality for the purposes of Wednesbury unreasonableness.

The courts will only interfere with the decision of a public authority if it is outside the band of reasonableness. It was well put by Professor Wade in a passage in his treatise on Administrative Law, 5th Edition at page 362 and approved by in the case of the Boundary Commission [1983] 2 WLR 458, 475:

“The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too lightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.”

Whereas, this Court may well form the view that the Board’s decision that there was no notification to Lantech since the towns were not indicated in light of the indication of the postal codes, was unreasonable, I cannot say that the said decision was so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it. The mere fact that this Court would have arrived at a different decision does not entitle this Court to interfere with the Board’s decision as to do so would amount to this Court sitting on an appeal against the Board’s decision. The appellate jurisdiction, it must be remembered is donated by section 112 of the Act and this Court’s judicial review jurisdiction is not to be treated as being complementary to or alternative to that appellate jurisdiction. I accordingly decline to interfere with the Board’s decision dismissing the preliminary objection.

The Board was also faulted in its decision to debar Seven Seas from participating in future proceedings in respect of the tender. Section 115 of the Act provides as follows:

(1) The Director-General, with the approval of the Advisory Board, may debar a person from participating in procurement proceedings on the ground that the person—

(a) has committed an offence under this Act;

(b) has committed an offence relating to procurement under any Act;

(c) has breached a contract for a procurement by a public entity;

(d) has, in procurement proceedings, given false information about his qualifications; or

(e) has refused to enter into a written contract as required under section 68.

(2) The Director-General, with the approval of the Advisory Board, may also debar a person from participating in procurement proceedings on a prescribed ground.

(2A) Debarment under this section may be imposed by the Director-General on the recommendation of a law- enforcement agency with an investigative mandate.

(3) A debarment under this section shall be for a period of time of not less than five years, as may be specified by the Director-General.

The Board however relied on section 98 of the Act which provides as follows:

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

(a) annul anything the procuring entity has done in the procurement proceedings, including annulling the procurement proceedings in their entirety;

(b) give directions to the procuring entity with respect to anything to be done or redone in the procurement proceedings;

(c) substitute the decision of the Review Board for any decision of the procuring entity in the procurement proceedings;

and

(d) order the payment of costs as between parties to the review.

Can this provision be construed to confer upon the Board the power to grant any order under the sun? This issue was the subject of this Court’s decision in Judicial Review Application No. 106 of 2014 – Republic vs. Public Procurement Administrative Review Board & Others ExpOlive Telecommunication PVT Limited in which the Court expressed itself as follows:

“Debarment is a technical as well as legal process under Part IX of the Act. Under Section 115, power to debar a person is vested in the Director General of the Public Procurement Oversight Authority (PPOA) with the approval of the Advisory Board. Debarment is a whole process by itself with in-built safeguards such that investigations are done and the person concerned must be given an opportunity under section 116 to make representations to the Director-General. Debarment will then be imposed only after the grounds set out in section 115 have been established. Even where debarment is imposed under section 115(2A) on the recommendation of a law-enforcement agency with an investigative mandate, section 116 still applies. Therefore, debarment must be done strictly in accordance with the provisions of the Act because it attracts serious sanctions and serves an important purpose of maintaining the integrity of the process of public procurement…The role of the Review Board in debarment is at different level as outlined in sections 117 and 122 of the Act…Therefore, the way the law is tailored, the Review Board has no power to debar a person in a proceeding for administrative review under section 92 and 98 of the Act, since it is not a power expressly conferred upon it. In our view where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority. In Republic vs. Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530it was held that the general principle remains however, that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others and based on East African Railways Corp. vs. Anthony Sefu Dar-Es-Salaam HCCA No. 19 of 1971 [1973] EA 327, the courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it…Therefore where the law exhaustively provides for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. However, if Parliament gives great powers to them, the courts must allow them to it. The Courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds…It is therefore our view that in granting the order whose effect was to debar the Applicant from participating in the procurement process the Respondent exceeded its jurisdiction and made an illegal order. An illegal Court order is a nullity and the court cannot sanction what is illegal.”

It is therefore clear that the Board has no jurisdiction in the exercise of its powers under section 98 of the Act to debar a party to the procurement proceedings. Such power can only be exercised in accordance with the provisions under Part IX of the Act.

With respect to the decisions annulling the award of the tender made by the procuring entity to Seven Seas Technologies Limited, directing the procuring entity to complete the procurement and render an award as respects the tender within fifteen (15) days from 22nd April 2014 and directing the procuring entity to extend the tender and the bid bond validity period, no material has been placed before me to warrant interfering therewith. I however modify the timelines given by the Board to provide that the fifteen (15) period will run from the date of this decision.

It was contended that the effect of granting the orders sought herein would be to nullify two decisions. This Court is aware that in its decision made in R vs. Public Procurement Administrative Review Board and Others exp Seven Seas Techniques Limited JR No. 160 of 2014, the other decision had been dealt with. Accordingly nothing turns upon this submission.

Order

In the result I hereby grant an order of certiorari quashing the 1st Respondent’s decision made on 22nd April 2014, barring Seven Seas Technologies Limited from further participating in the tender the subject of these proceedings. I further confirm the Board’s decision directing the Procuring Entity to to complete the procurement and render an award as respects the tender. The said process to be done within fifteen (15) days from the date of this decision.

As none of the parties has been wholly successful and as the procurement process is still alive there will be no order as to costs.

Dated at Nairobi this 1st day of July, 2015

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Muiruri for the Applicant

Mr Mungao for Mr Owino for the Interested Party

Mr Murage for the 2nd Respondent

Cc Patricia