[2022] KEHC 1175 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

JR APPLICATION NO. E011 OF 2022

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

-VERSUS-

PUBLIC PROCUREMNET ADMINISTRATIVE REVIEW BOARD.............................RESPONDENT

-AND-

THE ACCOUNTING OFFICER, KENYA BUREAU OF STANDARDS.....1ST INTERESTED PARTY

M/S BUREAU VERITAS...................................................................................2ND INTERESTED PARTY

M/S WORLD STANDARDAIZATION

CERTIFICATE &TESTING GROUP (SHENZHEN) CO. LTD...................3RD INTERESTED PARTY

M/S CHINA CERTIFICATION & INSPECTION GROUP CO. LTD...........4TH INTERESTED PARTY

M/S TUV AUSTRIA TURK................................................................................5TH INTERESTED PARTY

M/S CHINA HANSON INSPECTION & CERTIFICTION CO. LTD...........6TH INTERESTED PARTY

M/S SGS.................................................................................................................7TH INTERESTED PARTY

-AND-

INTERTEK INTRENATIONAL LIMITED...........................................................EX PARTE APPLICANT

JUDGEMENT

1. The ex-parte Applicant (hereinafter “the Applicant”) moved this court vide an application dated 4th February, 2022 seeking for ORDERS:

1)THATAN ORDER OF CERTIORARI be and is hereby issued to remove to this court for purposes of being quashed the proceedings and consequential orders thereto in the Respondent’s decision dated 24th of January, 2022 by which decision the Respondent dismissed the Applicant’s Request for Review dated 3rd of January, 2022.

2)THATAN ORDER OF MANDAMUS be and is hereby issued compelling the Respondent to consider the Applicant’s Review Application dated 3rd of January 2022 on merits without the Preliminary Objection dated 6th of January, 2022 and filed with the Respondent on the 14th of January 2022.

3)THATany or further orders, writs and directions that this Honourable Court considers appropriate and just to grant herein.

4)THATcosts of this application be provided for.

2. The application is supported by the grounds set out on the face of the application together with the Statement of Facts dated 3rd February, 2022 and Verifying Affidavit of Douglas Nyamoriof even date. The main grounds for the application is that the 1st Interested Party through restricted tender invited bidders including the Applicant herein to tender in Restricted Tender Number KEBS/RT010/2021/2024-International Tender for Provision of Pre-Export Verification of Conformity (PVOC) to Standards Services (Re-Tender) (hereinafter “the tender”) and whose closing dated was the 31st August, 2021 and the Applicant participated in the same by partially submitting its bid. However, the Applicant received the letter of notification of regret dated 22nd December, 2021 informing it that its bid was unsuccessful for reasons that it did not provide evidence of the mandatory requirements for preliminary evaluation.

3. Aggrieved by the 1st Interested Party’s conduct of the tender process, the Applicant lodged with the Respondent the Request for Review Application Number 001 of 2022 dated 3rd of January 2022 which application was dismissed on account of the Preliminary Objection filed by the 1st Interested Party. It is now contended that the Respondent’s conduct of the review proceedings before it was marred with procedural irregularities because the Respondent by considering the Preliminary Objection failed to comply with its Circular No. 02/2020 dated 24th of March 2020 which provides that upon being notified of and served with a copy of a Request for Review, an Accounting Officer of a procuring entity shall file and submit to the Secretary his/her Memorandum of Response and/or Preliminary Objection within 5 days of service together with confidential information as requested by the Public Procurement Administrative Review Board (hereinafter “the Board’) which they failed to do and service effected after pleadings had been closed.

4. Secondly, that taking into account the 21 days window for determination of review applications and the close of pleadings, the Applicant was not given an opportunity to be heard with respect to the Preliminary Objection which amounts to trial by ambush and a direct violation under Article 50 of the Constitution. Furthermore, that the Respondent’s failure to strike out the objection amounts to procedural impropriety on its part and as such, the administrative process was not procedurally fair. Lastly, that the Respondent’s failure give directions on the dispensation of the objection considering it was filed after close of pleadings locked the Applicant out of the seat of justice.

5. It was further contended that the Respondent’s decision to dismiss the application is in addition an affront to procurement processes in Kenya and its duty to ensure that they are conducted fairly and in accordance with the principles under Article 227(1) of the Constitution. Indeed, they averred that the Respondent upheld an illegal procurement process on account of a technicality pursuant to Section 167(1) which formed the basis of the impugned Preliminary Objection which provides the instances where an aggrieved bidder may approach it for review, considering the same is ambiguous and is subject to different interpretation. It was therefore urged that the application be allowed.

Responses

6. The 1st Interested Party opposed the motion through the Replying Affidavit of Miriam Boit Kahiro sworn on 10th February, 2021. The deponent is the Director Legal Services & Corporation Secretary of the Kenya Bureau of Standards. She deponed that the Applicant being aggrieved with the procurement outcome in respect of the tender filed a Request for Review which they responded to through a Memorandum of Reference dated 7th January, 2022 and a Notice of Preliminary Objection dated 6th January, 2022. That further to the said Preliminary Objection, the 1st Interested Party filed written submissions dated 17th January, 2022 where it submitted both in support of its Preliminary Objection and against the Request for Review.

7. Ms. Kahiro contended that in filing its pleadings, the 1st Interested Party was cognizant of the Respondent’s Circular No. 2 /2020 dated 24th March, 2020 whose import was the dispensation of physical hearings and determination of Requests for Review by way of written submissions and the Respondent based on the pleadings on record, rendered its decision on Application No. 01 of 2022 consolidated with Application No. 04 of 2022 on 24th January 2022 whereby the Request for Review was struck out for want of jurisdiction. She averred that the 1st Interested Party served upon all the parties to the proceedings its Notice of Preliminary Objection vide their Advocates e-mail pursuant to the provisions of Order 5 Rule 22(b) and 22(c) of the Civil Procedure (Amendment) Rules 2020 with the written submissions physically served upon their offices. That despite service, the Applicant did not address themselves to the issue of the Preliminary Objection served upon it either through a response thereto or by filing further submissions neither did the Applicant bring to the attention of the Board during the proceedings that they contested the manner in which the Preliminary Objection was filed and/or sought directions for its determination.

8. It was further their contention that Regulations 209(2) of the Public Procurement and Asset Disposal Regulations 2020 provides that a preliminary objection shall be served to the Applicant at least one day before the hearing. As such, whereas the Applicant was presented with an opportunity to be heard by way of written submissions six (6) days before the decision was rendered, it voluntarily elected not to respond to the 1st Interested Party’s Notice of Preliminary Objection hence, it is now estopped under the estoppel doctrine from claiming to have been robbed of the right to be heard. In other words, the Applicant failed to exercise its rights in a timeous manner where the right was available to it.

9. Furthermore, she averred that the Applicant can only claim that the Board breached its right to be heard if the Board had refused to consider its response or objection to the filing of the 1st Interested Party’s Notice of Preliminary Objection. In any event, she averred that the question of jurisdiction is so central that the Court may, once raised by a party or on its own motion determine forthwith the question of its jurisdiction in entertaining the matter before it and it is immaterial whether the evidence before the court on the question of jurisdiction is scanty or limited and the Board could have suo moto determined the issue of jurisdiction.

10. However, it was their contention that even if the matter was to be returned for fresh review before the Board, it would not change the fact that the Board has no jurisdiction and any decision to the contrary would be null and void. Indeed, she contended that the Applicant had not met the threshold to succeed in a Judicial Review matter and reiterated that the Respondent considered all material facts before it and rendered a fair and just conclusion. She further urged that conclusion of the procurement process is greatly in the public interest and sought that the application be dismissed with costs to the 1st Interested Party.

11. On its part, the 3rd Interested Party opposed the application through the Replying Affidavit of Harold Amaya sworn on 8th February, 2022. The deponent is a director of the 3rd Interested Party. In the first instance, he deponed that the application has no merit, is a blatant abuse of the court process and ought to be dismissed with costs. It was also his deposition that other than stating that he was not given an opportunity to be heard, the Applicant does not state whether the points of law raised by the 1st Interested Party lacked merit or should not have been considered by the Board. Be that as it may, he averred that the Applicant’s prayer for an order of mandamus to consider the Applicant’s Review application dated 3rd January, 2022 without the Preliminary Objection dated 6th January, 2022 is absurd and the Board cannot be blind to matters of law that go into its very jurisdiction even on its own motion.

12. In Mr. Amaya’s view, the Applicant was not aggrieved by the decision of the Respondent in any way because they expressly admit to not submitting its entire bid in response to the tender document as such, the bid was non-responsive and did not go beyond the preliminary stage of evaluation. As such, the circumstance will not change whether or not the Board reconsiders the review application without the Preliminary Objection as desired by the Applicant. As such, the Applicant’s concerted effort to have the entire proceedings and consequential orders quashed is to enable it get a second chance at participating in the tender. He therefore urged that the application be denied in the wider interest of justice and public policy.

13. The 7th Interested Party on the other hand opposed the application through the Replying Affidavit of Hellen Achieng sworn on 8th February, 2022. The deponent is the Connectivity & Productivity Manager of the 7th Interested Party (hereinafter “SGS”). She deponed that sometime in August 2021, SGS received an invitation from the 1st Interested Party to enter into a bid with respect to the said tender and following the conclusion of the tender process, SGS emerged the successful bidder and was issued with a Notification of Award by way of a letter from the 1st Interested Party dated 22nd December, 2021. The Applicant on the other hand received a letter of notification of regret on 22nd December, 2021 prompting the Applicant to file a Request for Review Application No. 001 of 2022 dated 3rd January, 2020 before the Board.

14. That SGS received a notification of the said Request for Review through a letter issued by the Board dated 13th January, 2022 which letter invited SGS to forward information and arguments about the tender to the Board and through its advocates filed a Memorandum of Response dated 16th January, 2022 and written submissions dated 18th January, 2022 and a decision was delivered on 24th January, 2022 in which the Applicant’s Request for Review was struck out for want of jurisdiction on the basis that the same was statutorily time-barred under Section 167(1) of the Public Procurement and Asset Disposal Act, 2015 (hereinafter “the Act”).

15. In her view, time limitation is a jurisdictional question which is so fundamental in law and can be raised by the adjudicating body suo moto and need not be pleaded by parties. Indeed, she contended that the Respondent was justified in arriving at the determination that it lacked jurisdiction to hear and determine the Request for Review and even if the 1st Interested Party’s Preliminary Objection was filed outside the stipulated period, the Applicant had presented no evidence to show that in the period between service of the Preliminary Objection on 18th January, 2020 and issuance of the Respondent’s decision on 24th January, 2022, it made an effort to object to or respond to the objection and was denied.

16. It was also averred that in view of the Board’s lack of jurisdiction to hear and determine the Request for Review, the Respondent has not failed to perform a public duty that may be compelled by an order of mandamus. Consequently, the Respondent’s determination of whether it has the requisite jurisdiction cannot be said to have been procedurally improper and unfair as alleged by the Applicant and in the circumstances, the Applicant has not laid out a sufficient basis for the Honourable Court to issue an order of certiorari to quash the subject proceedings and consequential decision of the Respondent. Furthermore, the Applicant’s admission that it did not meet the tender requirements having only partially submitted it bid, demonstrated that this application is frivolous, vexatious and an abuse of the court process and the Applicant’s invitation of the court to delve into the merits of the Respondent’s decision is bad in law and should be disregarded and the application dismissed with costs.

17. In a rebuttal, the Applicant filed a Replying Affidavit sworn by Douglas Nyamorion 11th February, 2022. He denied being served with the 1st Interested Party’s Preliminary Objection via email and only got sight of the same on 18th January, 2022 and neither was proof of service provided. In addition, he averred that the Board did not guide affected parties on the manner in which the objection would be dispensed with considering the late service and therefore absurd for the 1st Interested Party to claim that they voluntarily elected not to respond to the objection and should be estopped from claiming that their right to be heard was violated.

18. He also noted that proceeding before the Board are guided by strict rules and timelines and it was irregular for the 1st Interested Party to claim that a preliminary objection can be filed at any stage. That Clause 2 of the Circular provides that responses and preliminary objections ought to be filed within 5 days of service of a review application while Clause 7 provides that failure to adhere to the strict timelines will be to the detriment of such a party as the Board shall strictly rely on the documentation filed before it within the timelines specified.

19. He further averred that the main ground for review of the Board’s decision is that they were never accorded an opportunity to be heard and in any event, the Preliminary Objection lacks merit as the Board erroneously interpreted Section 167(1) of the Act striking out their review application and not suo moto. It was also averred that the crux of their application was procedural improprieties occasioned by the Respondent in determining the Preliminary Objection and urged that their application be allowed.

Parties’ Submissions

20. The Applicant filed written submissions dated 16th February, 2022 in support of the motion. On the issue whether the decision of the Respondent was tainted with procedural impropriety, counsel submitted that the threshold for the grant of judicial review orders and the grounds under which such orders may be granted are well settled as was held in the case of Republic v Principal Secretary, Ministry of Defence & 2 Others; Kenya Tents Limited (Interested Party) Ex Parte Unique Supplies Limited (2019) eKLR which cited with approval Lord Diplock in Council of Civil service Unions v Minister for the Civil Service. Counsel therefore submitted that pursuant to Article 47 and 50(1) of the Constitution, the Applicant was not accorded the right to be heard amounting to procedural impropriety.

21. Further, that pursuant to Clause 7 of the Circular, the Applicant had legitimate expectation that the Respondent would only consider pleadings filed within the timelines specified therein. To that end, counsel cited the case of Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex Parte Soweto Residents Forum CBO (2019) eKLR on procedural legitimate expectation. Indeed, counsel submitted that a reasonable expectation was created that the Respondent would follow its laid down procedure and the stringent timelines set therein with respect to filing of objections. Furthermore, counsel submitted that the right to fair hearing entails giving adequate time to a person to prepare a case, present arguments and evidence and to challenge or to respond to opposing arguments or evidence which the Applicant alleges they were not accorded and cited the case of Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu (2014) eKLR to buttress his argument.

22. On the question of merits of the Preliminary Objection, counsel submitted that whether the issue of jurisdiction was brought suo moto, the Respondent is mandated by law to give the affected party the chance to be heard and it is irrelevant whether it would have arrived at the same decision even if it had afforded the parties an opportunity of being heard before making its decision. This counsel argued was expounded by Mwera, J (as he then was) in Nagendra Saxena v Miwani Sugar Company (1989) Limited (Under Receivership) Kisumu HCCC No. 225 of 1993. Accordingly, counsel urged that they had made a case to warrant grant of judicial review orders.

23. The 1st Interested Party also filed written submissions dated 26th February, 2022 opposing the motion. On the issue whether the Respondent’s decision signed and dated 24th Janaury, 2022 was arrived at in a manner that warrants the orders ought, counsel cited the cases of Humphrey Makokha Nyongesa & Another v Communications Authority of Kenya & 2 Others, Municipal Council of Mombasa v Republic & Another and Republic v Kenya Revenue Authority Ex Parte Yaya Towers Ltd in support of the proposition that judicial review is only concerned with the decision making process and not the merits of the decision.

24. Counsel argued that what is being challenged is the holding regarding the 1st Interested Party’s Notice of Preliminary Objection which centered on the competence of the Board to hear and determine Request for Review. In counsel’s view having no jurisdiction would mean that any decision, other than downing its tools as it did, would mean that the decision would be incurably defective and a nullity as was described in Macfoy v United Africa Co. Ltd (1961) 3 All ER, 1169. Counsel also cited the case of Peter Gichuki King’ara v Independent Electoral and Boundaries Commission & 2 Others (2013) eKLRfor the proposition that jurisdiction is jurisdiction and a court is either seized of it or not. Therefore, in his view, it is legally defeatist argument as proposed by the Applicant for the reason that even in the unlikely event that this court refers the impugned Request for Review for hearing and determination before the Board, this would still not confer jurisdiction upon it.

25. Counsel went on to submit that the Board has the power, as it has exercised in the past, to raise and determine the matter suo moto. To buttress this argument, counsel cited the case of Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib (2015) eKLR where the court held that it matters not the submissions of the parties, that is, whether they are heard or not, on the subject of jurisdiction. Counsel also relied on the cases of Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Rongo University (2018) eKLR and Jacqueline Okuta & Another v Attorney General & 2 Others (2017) eKLR for the proposition that an interpretation of the filing guidelines by the Respondent with regard to the filing of pleadings should be interpreted wholesomely and not disjunctively and that the Applicant failed to establish the alleged procedural impropriety.

26. Lastly, it was urged that the grant of judicial review orders is discretionary and the court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought. Accordingly, counsel urged that the application be dismissed.

Analysis and Determination

27. I have considered the application, the supporting grounds, the responses and learned submissions by counsel. The issue for determination arising therefrom is whether the applicant has established sufficient grounds to warrant the grant of an order of certiorari to quash the decision of the respondent dated 24th January 2022 and for the grant of an order of mandamus to compel the respondent to consider the applicant’s Request for review Application dated 3rd January 2022 on merits without the preliminary objection dated 6th of January 2022 filed by the respondent on the 14th of January 2022.

28. As summarized above, the genesis of this application is the respondent’s decision dated 24th January 2022 in which the respondent struck out the applicant’s request for review for want of jurisdiction. This finding was anchored on the provisions of section 167(1) of the Public Procurement and disposal Act as read with Regulation 203(2)(c) of the Public Procurement and Asset Disposal Regulations 2020. The respondent found for a fact that the issues raised by the applicant in the request for review were time barred within the meaning of section 167(1) of the Act and Regulation 203(2)(c).

29. The applicants main contention is that this decision was reached without it being accorded a right to be heard as the preliminary objection raised by the 1st Interested Party was not served on them via email and their advocates only caught sight of the objection when the same was physically served upon them on the 18th of January 2022. It is argued therefore that the applicant was denied the opportunity to defend the jurisdictional point of law raised in the preliminary objection.

30. The right to a fair hearing is guaranteed under Article 50 of the constitution. The Article provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. This right is inalienable and where it is denied the court would step in to offer the necessary remedy. Tied to this is the guarantee for fair administrative action enshrined in Article 47 of the constitution.

31. I find it necessary to restate the scope of judicial review as summed up in Pastoli v Kabale District Local Government Council and Others (2008) EA 300 where the court stated;

“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 orultra 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.”

32 .Of relevance in this case is whether there was procedural impropriety in the making of the impugned decision and whether there was unfairness in the making of the decision by non -observance of the rules of natural justice, more specifically, whether the applicant’s right to be heard was muzzled. Key to answering these two questions is a critical look at the timelines provided for the filing of the preliminary objection and if same was served timeously affording the applicant the opportunity to state their case and secondly, the nature of the preliminary objection. The applicant maintains that the preliminary objection was filed and served out of time being outside the 5 day period stipulated under the circular for filing of responses and objections to a review application. The same was filed on 14th of January 2022 and service effected on 18th January 2022 after pleadings had closed. The applicant’s case is that the preliminary objection ought to have been struck out.

32. On its part, the 1st interested party maintains that the Preliminary objection was served via email upon the applicant’s advocates and physically upon their offices. A stamped received copy of the same is exhibited.

33. It is trite law that point of law can be raised at any stage of proceedings. The courts have time and again restated this position of the law. In the case of Republic v Chief Registrar of the Judiciary & 2 others Ex parte Riley Services Limited [2015] eKLR (Nairobi Judicial Review Miscellaneous Application No 2 Of 2015)the court found that:-

“…the question of the appropriate time to raise a preliminary objection has been addressed in various decisions in our courts. In the case of Beatrice Cherotich Koskei and Another –vs- Olenguruone Land Dispute Tribunal and 2 Others Misc Civil Appl 861 of 2007, the court observed as follows:

“If, as respondents’ counsel contends, the present application is defective and incompetent, any proceedings based on it would be a nullity and a waste of everybody’s time. It is trite law that a preliminary objection can be raised at any time and that if such an objection exists, it is preferable for it to be raised at the earliest possible opportunity. I, therefore, hold that respondents’ counsel is entitled to raise his preliminary objection to the application as it stands, for the applicants to respond thereto for the court to make a determination thereon.”

These sentiments echoed the view of the court in the case of Ali Oshan and Others –vs- Mrs. Catherine Kaswii Nyiha and Others Misc Civil Application 525 of 2002 where the court stated as follows:

“It is obvious that the Kenya National Football Federation Constitution does not allow parties whose disputes fall within the definition of Article XIX (1) to commence proceedings in a court of law but to refer them to Arbitration. … It is trite law that a preliminary objection can be raised at any time when the action is still active. Hence Mr. Gikandi is perfectly right to raise the preliminary point at this stage... ”

33. It is obvious to this court that the p.o raised by the applicant is on a point of law challenging jurisdiction. Jurisdiction goes to the root of a matter and where none exists, the court must down its tools. A point of law touching on jurisdiction can, like any other, be raised at any stage and indeed even on appeal. The court of appeal addressing this point in Kenya Ports Authority v Modern Holdings (E.A) LTD [2017]Eklr stated;

‘’Generally speaking and on the authority of the Supreme Court decision in Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited & 2 Others, a court can only exercise that jurisdiction that has been donated to it by either the Constitution or legislation or both. Therefore it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Jurisdiction is in the end everything since it goes to the very heart of a dispute. Without it, the court cannot entertain any proceedings and must down its tools. See The Owners of the Motor Vessel Lilian ‘S’ v. Caltex Kenya Limited(1989) KLR 1.

This Court in Adero & Another V Ulinzi Sacco Society Limited [2002] 1 KLR 577, quite sufficiently summarised the law on jurisdiction as follows;

“1…………..

2. The jurisdiction either exists or does not ab initio and the non constitution of the forum created by statute to adjudicate on specified disputes could not of itself have the effect of conferring jurisdiction on another forum which otherwise lacked jurisdiction.

3. Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.

4. Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.

5. Where a cause is filed in court without jurisdiction, there is no power on that court to transfer it to a court of competent jurisdiction.

6. ………………..

7. ………………..”(Our emphasis).

We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:

“….at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself

- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.”

34. That being the legal position, no rule, regulation or edict whatsoever can oust the application of the law, circular no. 2 of 2020 by the respondent being no exception. The situation is aggravated when the circular cited is a mere internal regulatory mechanism guiding proceedings before the respondent in the advent of the covid 19 pandemic. To elevate such a circular to a fetish as the applicant is wont to do is not only a misguided adventure but a clear misapprehension of the law.

35. A proper interpretation of Circular No. 2 of 2020 can only mean that the envisioned objections to be filed within the prescribed timelines must be general factual objections by way of grounds of objections or otherwise but cannot in the remotest possibility shut out pure points of law which, in any event, the respondent could consider suo moto without prompting by either party.

36. It can never be a trial by ambush when a point of law is raised. There is evidence of physical service upon the advocates for the applicant on 18th January 2022 long before the respondent pronounced itself on the matter on the 24th January 2022. By electing not to respond to a point of law that could be raised anytime in the proceedings, the applicant slept on its laurels either by sheer ignorance of the law or indolence and the claim that they were denied an opportunity to be heard cannot stand.

36. The applicant has paid considerable attention to the plea that the po should not have been considered but has failed to lay material before court to show that the respondent misapprehended the law in its finding. When it is urged that the applicant had a legitimate expectation that the respondent would only consider pleadings filed within the specified timelines, the begging question is whether the applicant had a legitimate expectation that the respondent would not consider the law in its finding.

37. Had the applicant come before court faulting the decision for being clothed in illegality, the court would has the necessary jurisdiction to remedy the illegality. As things stand and even through this court’s interpretation of section 167(1) and Regulation 203(2)( c),the respondent’s decision was sound. The intention of parliament in enacting the section was certainly to expendite the processing of procurement disputes at the stages when they arose to ensure that the procurement processes are faster and are not dragged back by issues that ought to have been raised earlier.

Korir J in Republic v Public Procurement Adminstrative Review Board and 2 Others [2015]eKLR correctly summed up the the law as follows;

‘’ The jurisdiction of the Board is only available where an application for review has been filed within 14 days from the date of the delivery of the results of the tender process or from the date of the occurrence of an alleged breach where the tender process has not been concluded. The Board has no jurisdiction to hear anything filed outside fourteen days.’’

The court delved into the rationale for the timelines and stated;

‘’ The timelines in the PP&DA were set for for a purpose. Proceedings touching on procurement matters ought to be heard and determined without delay. Once a party fails to move the board within the time set by the Regulations., the jurisdiction of the board is extinguished in so far as the particular procurement is concerned.’’

38. Before I conclude special mention must be made over what I consider a bizarre prayer that the court grants an order of mandamus compelling the respondent to hear the applicant’s Request for Review on merit without the preliminary objection filed. In my view, this court has no jurisdiction to shut out or suspend the application of the law. The prayer aims at asking the respondent to ignore the law yet on its own motion the respondent ought to consider issues of law surrounding the matter and deal appropriately. The court in the case of Hafswa Omar Abdalla Taib & 2 Others v Swaleh Abdalla Taib [2015] Eklr stated;

‘’ Unfortunately for the parties and despite their industry in ventilating the issue of goodwill, the determination of the appeal will disappoint them as it turns on the issue of jurisdiction.; that is, whether this court has jurisdiction to entertain this appeal in the first place. We appreciate that it was an issue that was not raised by any of the parties. However, it is an issue of law that has long been settled and the parties and indeed their legal teams are deemed to know. Accordingly, this court can suo moto raise and determine the same’’

39. From the foregoing, and for reasons stated, I find no procedural impropriety neither denial of natural justice by the respondent to the applicant in the process and the impugned finding of the respondent. The application before court thus fails and is dismissed.

40. I make the following orders;

1. The application is dismissed.

2. Each party to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH 2022

A.K. NDUNGU

JUDGE