Rubis Energy Kenya Plc v Public Procurement Administrative Review Board & 3 others (Judicial Review E162 of 2026) [2026] KEHC 9811 (KLR) (Judicial Review) (6 July 2026) (Judgment)

Rubis Energy Kenya Plc v Public Procurement Administrative Review Board & 3 others (Judicial Review E162 of 2026) [2026] KEHC 9811 (KLR) (Judicial Review) (6 July 2026) (Judgment) Neutral citation: [2026] KEHC 9811 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E162 of 2026 WM Musyoka, J July 6, 2026 Between Rubis Energy Kenya Plc Applicant and Public Procurement Administrative Review Board 1st Respondent Kenya Power and Lighting Company Plc 2nd Respondent Kenya Power and Lighting Company Plc 3rd Respondent Stabex International Limited 4th Respondent Judgment 1.The Originating Motion herein, dated 26th May 2026, seeks the reliefs of certiorari to quash a decision made by the 1st respondent on 12th May 2026, in PPARB Application No. 57 of 2026; and that the reliefs sought in that PPARB Application No. 57 of 2026 be allowed. 2.The certiorari order is sought to quash the decision in PPARB Application No. 57 of 2026, which upheld the preliminary objections raised by the 2nd, 3rd and 4th respondents, dated 22nd April 2026 and 27th April 2026, respectively, striking out the Request for Review, filed by the applicant, dated 21st April 2026, for want of jurisdiction, and ordering the 2nd and 3rd respondents to proceed with the procurement process, in Tender No. KPI/9A.3/OT/18/25-26, for supply of and delivery of off grid power stations (consignment stocking). The reliefs sought, in PPARB Application No. 57 of 2026, were for annulment of the decision by the 2nd respondent, communicated in a letter of intention to award, dated 2nd April 2026, that the bid by the applicant, in Tender No. KPI/9A.3/OT/18/25-26 was unsuccessful and that the successful bidder was the 4th respondent; that the said tender, Tender No. KPI/9A.3/OT/18/25-26, be re-evaluated and awarded to the applicant. 3.The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the applicant was 1 of 3 successful bidders for Tender No. KPI/9A.3/OT/18/25-26, and the applicant had filed the Request for Review in PPARB Application No. 57 of 2026; the 1st respondent did not conduct a merit-based inquiry, on that Request for Review, but instead elevated it to an inquiry on jurisdiction, and struck out the Request for Review, notwithstanding unrebuttable representations, that the evaluation of the bid did not follow the criteria set out in the tender documents; the applicant spoke to the damage and loss occasioned by the evaluation process, that was in breach of the requirements set out in the tender document, the Constitution and the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya; and the notification of award, dated 2nd April 2026, spoke to an alien evaluation criterion called “competitive price”, rather than the “lowest evaluation tender” bid. 4.It is averred that the 2nd respondent had advertised Tender No. KPI/9A.3/OT/18/25-26, for supply and delivery of off grid power stations (consignment stocking), for 24 months. The wording of that tender, it is further averred, envisaged that the successful bid would be substantially responsive and the lowest evaluated price; substantial responsiveness as opposed to mere responsiveness; technical ability, by the tenderer, to execute the contractual obligation under the tender; the right, on the part of the 2nd respondent, to seek information and additional documents from the tenderer; and compliance with constitutional, statutory and contractual obligations on matters relating to the evaluation. 5.It is further averred that the applicant submitted a tender, which met the requirements of the tender specifications, and complied with sections 77(3) and 79(1) of the Public Procurement and Asset Disposal Act. However, despite the bid being responsive, the 2nd respondent, without any colour or justification, concluded that the bid was unsuccessful, on the basis that the price was not competitive, and awarded the tender to the 4th respondent, who had submitted the third lowest total tender price. It is averred that the notification revealed that the evaluation of the bid, by the applicant, was not in accordance with the tender, particularly clauses 33, 38 and 40.1 thereof, which envisaged the successful tender as the lowest evaluated tender bid, and not the competitive price. It is averred that that was contrary to the tender document and the evaluation criteria set in clauses 33 and 38 and section III clause 2.2, as competitive price was not a criterion under the tender. It is suggested that there was no just and lawful evaluation of the bids that were before the 2nd respondent. 6.It is asserted that the applicant had the best technical capacity, to discharge the contractual obligations under the tender, which criteria was the most material for the evaluation of the said tender, and which was not taken into consideration, and the applicant, being the current supplier, shall suffer loss and damage. 7.It is averred that section 80 of the Public Procurement and Asset Disposal Act and Regulation 16(5) of the Public Procurement and Asset Disposal Regulations, 2006, impose an obligation for evaluation of tenders in accordance with the evaluation criteria, and the procedures set out under the tender document, and, therefore, the taking into account irrelevant factors, in evaluating the bid, submitted by the applicant, the 2nd respondent deviated from the purpose and objectives in the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations, and violated the provisions of Articles 10 and 227 of the Constitution, section 88 of the Public Procurement and Asset Disposal Act and Regulations 29, 30, 75, 76 and 77 of the Public Procurement and Asset Disposal Regulations. 8.It is argued that Articles 47 and 227 of the Constitution, read together with section 4 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, guarantee the right to administrative action which is fair, reasonable, lawful and efficient, and it is submitted that those provisions were contravened, when the 2nd respondent found that the bid by the applicant was not price competitive, notwithstanding that the bid by the 4th respondent was the third lowest and not technically responsive. It is asserted that the 4th respondent would not have been the successful bidder, had the 2nd and 3rd respondents applied themselves constitutionally, lawfully and contractually. 9.The supporting affidavit is sworn by Mr. Martin Kiarie, the head of sales with the applicant, on 26th May 2026. The contents of the affidavit largely regurgitate the substance of the grounds on the face of the application. 10.Several documents are exhibited to the supporting affidavit. There is a copy of the advertisement for the tender and the tender. There is a copy of the notification of intention to award tender, dated 2nd April 2026. There is a copy of a self-declaration, which should show, according to the applicant, that the 4th respondent had no capacity to meet the tender requirement, and could not have made a responsive bid. There is a copy of the Request for Review, by the applicant, dated 21st April 2026, together with the affidavits and the annextures supporting it. There are copies of the preliminary objections raised by the 2nd, 3rd and 4th respondents, dated 22nd April 2026 and 27th April 2026. There is a copy of the decision of the 1st respondent, in PPARB Application No. 57 of 2026, dated 12th May 2026. The final document is a notification of the award, dated 2nd December 2022, with respect to a previous tender, where the applicant was the successful bidder. 11.The Originating Motion was placed before me, on 26th May 2026, under certificate of urgency, and I gave directions, with respect to service, and filing of responses. I also granted temporary relief, in terms of prayer 2 of the Originating Motion. 12.Upon being served with the Originating Motion, the respondents have filed notices of appointments of their respective Advocates, and have responded to the application, by way of replying affidavits. 13.The reaction to the Originating Motion, by the 1st respondent, took the form of an affidavit in reply, sworn by Mr. Philemon Kiprop, the Secretary to the 1st respondent, dated 5th June 2026. It is averred that the application, by way of Originating Motion, is an appeal, disguised as an application for judicial review, of the decision of the 1st respondent, of 12th May 2026, in PPARB Application No. 57 of 2026, and the court is urged to decline to allow it, on grounds of want of jurisdiction to determine an appeal against the said decision. It is asserted that the decision of the 1st respondent, was premised on section 167(1) of the Public Procurement and Asset Disposal Act, and on the finding and holding that the applicant had failed to expressly plead or claim, in its Request for Review, that had suffered or was likely to suffer loss or damage, due to an alleged breach of duty imposed on the 2nd and 3rd respondents by the Public Procurement and Asset Disposal Act. It is further averred that the applicant sought, through a further affidavit and written submissions, to cure the omission or defect to make that pleading, but the 1st respondent ruled that an affidavit is not a pleading, and it cannot be used to cure a deficiency in a pleading, without amending the pleading itself. It is averred that the 1st respondent properly found and held that the applicant lacked standing to seek administrative review, for failure to plead that it had suffered or risked suffering loss or damage, due to a duty imposed on the 2nd and 3rd respondents, by the Public Procurement and Asset Disposal Act, and the 1st respondent itself, on account of that, lacked jurisdiction to hear and determine the Request for Review. 14.The reply, to the Originating Motion, by the 2nd and 3rd respondents, is vide an affidavit that Mr. Dennis Maanzo, a legal officer of the 2nd respondent, swore on 3rd June 2026. It is averred that the decision of the 1st respondent was fair, lawful, sound, reasonable and took into account all the relevant facts and the law, and that no illegality, error of law or unreasonableness is demonstrated. It is averred that the 2nd and 3rd respondents raised a preliminary objection to the Request for Review, filed in PPARB Application No. 57 of 2026, dated 12th May 2026, premised on section 167(1) of the Public Procurement and Asset Disposal Act, arguing that loss or damage suffered by an unsuccessful bidder, is a prerequisite for lodge of a Request for Review, and it must be pleaded, for jurisdiction to be invoked. It is argued that the 1st respondent appreciated the requirements of section 167(1), and found and held that a party seeking review by it, must plead suffering loss or damage, or a risk of such suffering, due to a breach of duty imposed on a procuring entity by the Public Procurement and Asset Disposal Act and the Regulations made under it. It is averred that the 1st respondent found and held that the applicant did not plead any loss or damage, arising from a breach of a duty, on the part of the 2nd and 3rd respondents, a duty imposed on them by the Public Procurement and Asset Disposal Act. It is also averred that the tendering process was carried out substantially in compliance with the tender documents, the Public Procurement and Asset Disposal Act, the Public Procurement and Asset Disposal Regulations 2020 and the Constitution. 15.A number of copies of documents are attached to the replying affidavit. There is a copy of the Memorandum of Response to the Request for Review, which the 2nd and 3rd respondents filed in PPARB Application No. 57 of 2026, dated 22nd April 2026. A copy of the notice of preliminary objection, dated 22nd April 2026, which was also filed, by the 2nd and 3rd respondents, in PPARB Application No. 57 of 2026. A copy of the written submissions, that the 2nd and 3rd respondents filed in PPARB Application No. 57 of 2026, dated 4th May 2026, is also annexed. 16.The reply, by the 4th respondent, is vide an affidavit, sworn by its Executive Director, Mr. Joseph Chebungei Kiptoo, on 5th June 2026. It is averred that the 4th respondent was notified, by a letter, dated 2nd April 2026, that its bid was successful. The applicant was aggrieved, and lodged a Request for Review, with the 1st respondent, filed in PPARB Application No. 57 of 2026. The 4th respondent filed a reply to the Request for Review, and raised a preliminary objection. The preliminary objection turned on the Request for Review not being premised on section 167(1) of the Public Procurement and Asset Disposal Act, hence the 1st respondent lacked jurisdiction to entertain it. The 1st respondent ruled in favour of the 4th respondent. It is asserted that that decision, of the 1st respondent, was rational, lawful, procedurally fair and within statutory mandate. The 4th respondent asserts that only a bidder, who claims to have had suffered or risked suffering loss or damage due to alleged breach of duty, imposed on a procuring entity, may invoke the jurisdiction of the 1st respondent. It is argued that that is mandatory, under section 167(1) of the Act, and that the failure to invoke it was fatal. 17.The 4th respondent has placed on record some documents to support its case. There is the letter of 2nd April 2026, awarding the tender. There is a copy of the affidavit the 4th respondent filed in PPARB Application No. 57 of 2026. There is also a copy of the notice of the preliminary objection that it raised in PPARB Application No. 57 of 2026. There is also a copy of the written submissions that it filed in PPARB Application No. 57 of 2026. 18.Directions, on disposal of the Originating Motion, were given on 8th June 2026, for canvassing by way of written submissions, to be filed and exchanged within 14 days. Judgement was fixed for 6th July 2026 at 2.00 PM. 19.The parties complied, by filing their respective written submissions. The applicant filed a set of written submissions, dated 15th June 2026 and 25th June 2026. The written submissions, by the 1st respondent, are dated 23rd June 2026. The written submissions, by the 2nd and 3rd respondents, are dated 22nd June 2026. The written submissions, by the 4th respondents, are dated 22nd June 2026. 20.The applicant filed 2 pieces of written submissions. The first being the main submissions, and the second comprising of supplementary submissions, reacting to the submissions made by the other parties. I shall narrate the main submissions first, and advert to the supplementary submissions after I have narrated the submissions filed by the other parties. 21.In the main submissions, the applicant identifies 2 issues for determination. The first issue revolves around whether the applicant failed to satisfy the requirements of section 167(1) of the Public Procurement and Asset Disposal Act, and the second is about whether the applicant is entitled to the reliefs that it has sought. It has submitted around locus standi and jurisdiction; the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act; the place of Article 159(2) of the Constitution in the construction of section 167(1) of the Public Procurement and Asset Disposal Act; and striking out of pleadings. 22.On locus standi and jurisdiction, it is argued that the 1st respondent went wrong in conflating between locus standi and jurisdiction. The issue raised, with respect to section 167(1) of the Public Procurement and Asset Disposal Act, it is argued, turned on jurisdiction, not locus standi, for the applicant had locus standi to seek review, for it had been party to the tendering process, and, as an unsuccessful bidder, it was entitled to challenge the outcome and process of the evaluation of the tender. The decisions, in Khelef Khalif El-Busaidy vs. Commissioner of Lands & 2 others [2002] eKLR [2002] KEHC 1117 (KLR) and Republic vs. Public Procurement Administrative Review Board; Samno Company Limited & another (Interested Parties) Ex parte Ministry of Defence & another [2019] eKLR[2019] KEHC 775 (KLR), are cited. 23.On the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act, it is argued that the 1st respondent misdirected itself, when it imposed a requirement that is not expressly provided for under the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations. It is argued that the proper approach to the matter ought to have been that adopted in Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Electricity Generating Company PLC & 2 others (Interested Parties); Sinopec International Petroleum Services Corporation (Ex parte) [2024] KEHC 16676 (KLR) and PPARB No. 143 of 2020 Maverick Digital Limited vs. The Accounting Officer, Kenya Ports Authority & another and Zocom Limited & 8 others. It is submitted that the applicant had filed affidavits, which dwelt on the loss or damage that section 167(1) of the Public Procurement and Asset Disposal Act envisages, yet, the said affidavits were ignored, despite not being struck out. Cecil Miller vs. Jackson Njeru & another [2017] eKLR [2017] KEHC 1499 (KLR) and HC Judicial Review Miscellaneous Application No. E039 of 2022 (Republic vs. Public Procurement Administrative Review Board and CIC Group Insurance & another) are cited in support. 24.On the place of Article 159(2) of the Constitution, in the construction of section 167(1) of the Public Procurement and Asset Disposal Act, it is submitted that Article 159(2) of the Constitution requires justice to be administered without undue regard to technicalities of procedure, for justice to be done to all. The applicant cites several decisions were the courts discourage the striking out of pleadings, asserting that that approach is drastic and draconian, to be employed only as a last resort, where the pleadings cannot be cured by way of amendment. The decisions cited include Mwahima Mwalimu Masudi vs. Independent Electoral and Boundaries Commission & 3 others [2017] KEHC 2259 (KLR), Nicholas Kiptoo Arap Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR[2013] KECA 113 (KLR), James Mang’eli Musoo vs. Ezeetec Limited [2014] KEELRC 761 (KLR) and DT Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another [1980] eKLR[1980] KECA 3 (KLR). 25.In its written submissions, the 1st respondent has addressed issues around jurisdiction, and the threshold for grant of judicial review orders. On jurisdiction, it is submitted that section 173 of the Public Procurement and Asset Disposal Act specifies the nature of the orders that the 1st respondent may make, which include annulment of the procurement or disposal process, give directions to the accounting officer for something to be done or redone in the procurement or disposal process, substitute the decision of the 1st respondent with that of the accounting officer, order payment of costs between the parties to the review, and order termination of the procurement process and commencement of a new procurement process. It is argued that the orders made by the 1st respondent were in line with what is expected of it, under section 173 of the Public Procurement and Asset Disposal Act. 26.Secondly, the 1st respondent submits that the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies. Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR [2014] KEHC 7601 (KLR) is cited. It is asserted that the purpose of judicial review is not to ensure that the public body reaches a conclusion which is correct in the eyes of the court. Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR [2008] KEHC 489 (KLR) is cited in support. It is submitted that the judicial review process is not akin to an appeal, and the court, seized of a judicial review matter, is not empowered to venture into correcting the decisions of the 1st respondent, on the merits, for it is the work of the 1st respondent to look into the merits. Republic v Kenya Revenue Authority & another Ex-Parte Bear Afric (K) Limited [2013] KEHC 2095 (KLR), Republic vs. Commissioner of Customs Services ex parte Africa K-Link International Limited [2012] eKLR [2012] KEHC 1274 (KLR) and Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR [2012] KECA 104 (KLR) are cited. 27.The criteria to be employed, to evaluate whether judicial review orders are available, should be illegality, impropriety of procedure and irrationality, it is argued, based on Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 and Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300. It is submitted that it would be upon the party, seeking judicial review, to establish breach of any of the criteria above. 28.It is submitted that where an applicant alleges that the tribunal had made an error of law, it must be demonstrated that there was, indeed, a mistake that goes to jurisdiction of the tribunal. However, it is argued, a misinterpretation of the law is not a sufficient reason to move the court for judicial review orders. It is argued that the instant proceedings are an appeal disguised as a judicial review application, and the same should not be entertained. It is submitted that there is a clear distinction between appeal and judicial review, where judicial review only focuses on the fairness of the process, under which the impugned decision or action was arrived at. The court, seized of a judicial review matter should focus only on that, and should not consider the merits of the decision, for reviewing a decision on merits would be tantamount to usurping the power of the tribunal. Municipal Council of Mombasa vs. Republic & another [2002] eKLR[2002] KECA 8 (KLR), Republic vs. Kenya Power & Lighting Company Limited & another [2013] eKLR, Mureithi & 2 others (All suing for and on behalf of Mbari-Ya Murathimi Clan) v Attorney General & 5 others [2006] eKLR [2006] KEHC 3488 (KLR), Republic of Kenya vs. University of Nairobi [2002] 2 EA 572, Okiya Omtatah Okoiti vs. Kenya Revenue Authority & 2 others [2016] eKLR [2016] KEHC 7693 (KLR) and Republic vs. Cabinet Secretary, Ministry of Interior and Coordination of National Government & 2 others ex parte Patricia Olga Howson [2013] eKLR [2013] KEHC 676 (KLR) are cited. 29.The 2nd and 3rd respondents submit on whether the applicant pleaded that it suffered or risked suffering loss or damage, as a result of an alleged breach of the law, by the 2nd respondent, in its quest for review; illegality, irrationality and procedural impropriety; threshold for grant of the orders sought; and costs. 30.On whether the applicant pleaded that it suffered or risked suffering loss or damage, as a result of an alleged breach of a duty imposed by law, by the 2nd respondent, in its quest for review, it is submitted that there is no contestation, that the Request for Review did not carry a pleading, to establish that the applicant suffered or risked suffering loss or damage, due to breach of a duty imposed on the 2nd respondent, by the Public Procurement and Asset Disposal Act. 31.On illegality, irrationality, and procedural impropriety, it is submitted that, notwithstanding section 7(2) of the Fair Administrative Action Act, judicial review is anchored on these 3 pillars. It is submitted that, beyond the averment that the decision was tainted by illegality, none of the grounds on which it is premised point to any form of illegality. Municipal Council of Mombasa vs. Republic & another [2002] eKLR[2002] KECA 8 (KLR), Judges and Magistrates Vetting Board vs. Centre for Human Rights and Democracy [2014] eKLR [2014] KESC 9 (KLR) and Republic vs. Kenya Bureau of Standards & 2 others Ex parte Gladys Nyawira Wanjohi [2014] KEHC 7666 (KLR) are cited, for emphasis that a court seized of judicial review proceedings, only focuses on the lawfulness of the decision, on account of legality rationality and reasonableness, but not on the merits of the decision. It is submitted that whereas judicial review is on the lawfulness of the decision, appeal is on the merits of the decision. 32.On illegality, Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Rongo University [2018] eKLR[2018] KEHC 9643 (KLR), is cited, where illegality is identified as the contravention or exceeding of the terms of the power which authorises the making of the decision, pursuit of an objectives other than that for which the power to make the decision is conferred, the decision is not authorised by any power and it contravenes or fails to implement public duty. It is submitted that the applicant asserts that the decision was tainted by error of law, by the finding that the review application did not satisfy section 167(1) of the Public Procurement and Asset Disposal Act. It is pointed out, that under section 167(1) of the Public Procurement and Asset Disposal Act, the party who may lawfully seek review of a decision of the 1st respondent, or invoke its jurisdiction, would be one who participated in the procurement process, either as a bidder or as tenderer, and should allege that they suffered or risked suffering loss or damage, as a result of breach of the law, by the procuring entity. It is asserted that pleading loss or damage, or risk of loss or damage, on account of a breach of the law by the 2nd respondent, is a prerequisite for any party filing a Request for Review, which must be pleaded, for jurisdiction to be properly invoked, under section 167(1) of the Public Procurement and Asset Disposal Act. It is argued that the applicant did not plead loss or damage, or risk of the same, on account of a breach of the law by the 2nd respondent; neither was the same established or demonstrated. 33.It is asserted that the 1st respondent noted the contents of section 167(1) of the Public Procurement and Asset Disposal Act, and appreciated that for a party to invoke the jurisdiction, it must claim to have suffered that which is set out in that provision. It is also submitted that the 1st respondent appreciated the law and the jurisprudence, on the requirement for a candidate or tenderer to plead suffering loss or damage, or the risk of suffering the same, due to such breach. The decisions, in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR); Republic vs. Public Procurement Administrative Review Board & 2 others, Mfi Document Solutions Limited (Interested Party), Mal-Mart Enterprises Limited (Ex parte) [2024] KEHC 9582 (KLR); Space Contractors & Suppliers Investments Limited vs. Public Procurement Administrative Review Board & 23 others [2023] KECA 1457 (KLR) and Milimani HCJRMISC/E069/2025: Peesam Limited vs. KPLC & 6 others, are cited in support. It is averred that the 1st respondent properly found that there was no locus standi to bring the proceedings, and that the same was not subsequently cured by the filing of a reply to Request for Review and the affidavits subsequently filed. 34.On irrationality and procedural impropriety, the decisions in Republic vs. Public Procurement Administrative Review Board Ex parte Intertek International Limited, Accounting Officer Kenya Bureau of Standards & 6 others (Interested Parties) [2022] eKLR[2022] KEHC 1175 (KLR), Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300 and Republic v District Land Adjudication and Settlement Officer Maara Sub- County & 3 others; Kiririka (Interested Party); Ragwa (Ex parte) [2021] eKLR [2021] KEELC 338 (KLR), are cited, on what constitutes those 2, being gross unreasonableness which no reasonable authority, properly addressing its mind to the law and facts before it could make such a decision, for the decision would defy logic and acceptable moral standards; and failure to act fairly, by way of non-observance of rules of natural justice, or failure to follow the laid down procedural rules, expressed in the applicable statute. It is argued that the applicant did not plead irrationality and procedural impropriety, as grounds for the review sought. 35.On whether the application meets the threshold for grant of the orders sought, for certiorari, Paul Kiplagat Birgen & 25 others vs. Independent Electoral and Boundaries Commission & 2 others [2011] eKLR [2011] KEHC 1246 (KLR) and Republic vs. Public Procurement Administrative Review Board, Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power & Lighting Company Limited [2019] eKLR[2019] KEHC 9870 (KLR), are cited, to make the point that certiorari is about quashing a decision which is ultra vires, and that is about investigating whether a decision is made under a legal power or legal authority. There is also the point that certiorari would not issue as a matter of right, but that it is discretionary, issuing only for compelling reasons, and may be refused even where the requisite grounds for its grant exist or are established. It is submitted that no aspect of illegality, irrationality or procedural impropriety has been demonstrated, to warrant the making of a certiorari order, with respect to the decision of the 1st respondent. 36.Regarding prohibition, Kimani vs. Director of Public Prosecutions & 3 others [2024] KEHC 3269 (KLR) and Republic vs. Principal Kadhi, Mombasa, Ex parte Alibhai Adamali Dar & 2 others, Murtaza Turabali Patel (Interested Party) [2022] eKLR[2022] KEELC 371 (KLR), are cited, for the point that prohibition is about assumption of unlawful or excess jurisdiction. It issues, it is argued, to prohibit or forbid encroachment into jurisdiction, and to prevent implementation of orders issued when there is lack of jurisdiction. It is submitted that certiorari go together with prohibition, and the prohibition order issues to restrain enforcement of a quashed decision. It is argued that, as certiorari should not issue herein, in the first place, for the impugned decision is legally sound and procedurally fair, the order of prohibition would not be available. 37.On costs, it is argued that, following section 27(1) of the Civil Procedure Act, Cap. 21, Laws of Kenya, costs follow the event, with the court enjoying discretion, to determine which party would pay them, and to what extent. Kenya Sugar Board vs. Ndung’u Gathinji [2013] eKLR [2012] KEHC 5608 (KLR and Jasbir Singh Rai & 3 others vs. Tarlochan Singh Rai & 4 others [2014] eKLR [2007] KECA 132 (KLR) are relied upon. 38.The 4th respondent submits on 2 issues, whether the 1st respondent had jurisdiction to hear and determine the review, in PPARB Application No. 57 of 2026; and whether sufficient grounds have been established, in these proceedings, to warrant grant of the orders sought in the application. 39.On the first issue, whether the 1st respondent had jurisdiction to hear and determine the review, in PPARB Application No. 57 of 2026, it is submitted that the question of locus standi is fundamental, as it directly implicates jurisdiction, and the 1st respondent has to first determine whether an applicant meets the threshold, under section 167(1) of the Public Procurement and Asset Disposal Act, before it assumes jurisdiction. It is submitted that the attempt to separate locus standi from jurisdiction is misplaced, in the context of section 167(1). It is argued that although the 2 concepts are analytically distinct, locus standi, under the Public Procurement and Asset Disposal Act, is a substantive statutory threshold, for assumption of jurisdiction by the 1st respondent. It is submitted that the 1st respondent would assume jurisdiction, upon the applicant demonstrating that it was a candidate or tenderer, in the impugned tender process, who has suffered or risks to suffer loss or damage, as a result of an alleged breach by the procuring entity. It is asserted that, without that, the 1st respondent would have no basis or foundation to entertain the Request for Review. It is argued that jurisdiction should only arise from proceedings properly instituted, under section 167(1) of the Public Procurement and Asset Disposal Act. 40.It is submitted that the applicant did not properly plead loss or damage, in the Request for Review, filed in PPARB Application No. 57 of 2026, for it merely alleged dissatisfaction with the evaluation criteria. It is further submitted that the failure to plead loss or risk of loss, could not be cured by subsequent affidavits and written submissions, filed subsequent to objections being raised by the respondents, for want of jurisdiction. It is argued, therefore, that omission, to plead loss or damage, was fatal. It is submitted, regarding the Request for Review, in PPARB Application No. 57 of 2026, that it was incompetent, and the 1st respondent was bound to determine the competence of the cause, ahead of considering merits. James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR) is cited. It is argued that the omission to make that pleading removed the foundation upon which the cause could rest, and as jurisdiction is everything, according to Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), the 1st respondent had to down its tools. 41.On the invocation, by the applicant, of Article 159(2)(d) of the Constitution, to argue that the omission to make that pleading was a procedural technicality, curable by that constitutional provision, it is submitted that that argument is misplaced, since Article 159 cannot cure jurisdictional defects. Abdullah Mangi Mohamed vs. Lazarus Beja & 5 others [2012] KEHC 706 (KLR) and Punyua vs. Mwanik & 2 others [2026] KECA 585 (KLR) are cited in support. 42.On the invocation of the provisions of the Public Procurement and Asset Disposal Regulations, by the applicant, to justify the format, of its Request for Review, as set out in the Fourteenth Schedule of the Public Procurement and Asset Disposal Regulations, it is submitted that those Regulations were declared unconstitutional, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another, Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC19224 (KLR). Moreover, it is submitted, that the Fourteenth Schedule of the Public Procurement and Asset Disposal Regulations is subsidiary to the Public Procurement and Asset Disposal Act, and cannot, therefore, override the provisions of the Act, which require a pleading on loss or risk of loss, at section 167(1) of the Public Procurement and Asset Disposal Act. 43.On the second issue, whether sufficient grounds have been established in these proceedings, to warrant grant of the orders sought in the application, the 4th respondent cites Republic vs. Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1[1989] eKLR [1989] KECA 48 (KLR), Blue Sea Services Limited (Ex parte Applicant), Managing Director Kenya Ports Authority & 15 others (Interested Parties) [2023] KEHC 25082 (KLR) and Republic vs. Public Procurement Administrative Review Board, Accounting Officer Kenya Power & Lighting Company PLC & another (Interested Parties), Jamari Enterprises Limited (Ex parte Applicant) [2026] KEHC 501 (KLR), to submit that judicial review is concerned with process, and not merits. 44.It is submitted that the Fair Administrative Action Act, particularly at section 7(2), has codified the grounds for judicial review, for matters that are brought under that Act. Suchan Investments Limited vs. Ministry of National Heritage and Culture & 3 others [2016] eKLR [2016] KECA 729 (KLR) is cited, where section 7(2) of the Fair Administrative Action Act, came up for consideration, and where it was asserted that even where an evaluation of the merits of the decision is undertaken, based on section 7(2), the reviewing court would still not have a mandate to substitute its own decision for that of the administrator, for all the court could do is to remit the matter to the administrator. 45.It is submitted that the applicant had failed to demonstrate any elements of illegality, irrationality, unfairness or procedural impropriety, or any of the grounds set out in section 7(2) of the Fair Administrative Action Act. It is argued that the 1st respondent considered the pleadings and submissions filed by the parties and correctly applied section 167(1) of the Public Procurement and Asset Disposal Act, in a reasoned well-founded decision. It is submitted that the gravamen of the Request for Review by the applicant was dissatisfaction with the evaluation criteria by the 2nd and 3rd respondents, without identifying any illegality, irregularity or procedural impropriety on the part of the 1st respondent. It is submitted that the applicant seeks to have this court re-evaluate the facts and the merits of the procurement, and to thereafter substitute the decision of the 1st respondent with that of the court, which is something impermissible in judicial review. Republic vs. Public Procurement Administrative Review Board Ex parte Giant Forex Bureau De Change Limited & 2 others [2017] KEHC 6030 (KLR) and Kenya National Examinations Council vs. Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR) are cited. 46.In the supplementary written submissions, the applicant addresses a defect, allegedly identified by the 2nd, 3rd and 4th respondents, and which the 1st respondent had relied on, and discusses whether it was a question of sufficiency of pleadings or a jurisdictional issue, to warrant striking out of pleadings. It is argued that the preliminary issue, raised by the 2nd, 3rd and 4th respondents, did not raise a jurisdiction question, but it addressed questions around form and sufficiency of the pleadings filed by the applicant. It is submitted that a defect in pleadings does not, unlike a question of jurisdiction, render the proceedings incapable of being sustained. It cites Paul Odhiambo Ogunde vs. Attorney General & 3 others [2026] KEHC 6011 (KLR), Loreign Ventures Limited & another vs. Public Transport Company Limited [2026] KEHC 4187 (KLR), Sabina Kemunto Nyangacha vs. Raymond Nyagwoka & 4 others [2025] KEELC 8139 (KLR), DT Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another [1980] eKLR [1980] KECA 3 (KLR)and Kenya Agricultural Research Institute vs. Jared Benson Kangwana [2026] KECA 1139 (KLR). It is submitted that the proper approach, to insufficiency of the pleadings, is to confirm that the respondents understood the claim as filed, and were able to respond to it. Catholic University of Eastern Africa vs. Tradebells Services Limited [2025] KEHC 19401 (KLR) is cited in support. It is argued that the purpose of pleadings is to outline the issues in dispute, to enable the opposing side respond to the same, and once that objective is met, the court ought to do substantive justice without being bound by procedural technicality. Anne Mato & another vs. Alice Achieng [2026] KEELC 1648 (KLR) is cited. 47.Having reviewed the filings herein, being the Originating Motion, the affidavits supporting it, the affidavits sworn against it, the annextures to the various affidavits, as well as the written submissions filed to argue the respective positions taken by the parties, my persuasion is that there are 2 issues to be determined. The primary issue is the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act. The determination of that primary issue, in one way could dispose of the matter finally, and the other way could lead to the secondary issue, whether I should grant the order sought in prayer 4 of the Originating Motion. 48.The primary issue is premised on prayer 3 of the Originating Motion, and that is for a certiorari order, to quash the decision of the 1st respondent of 12th May 2026, which upheld the preliminary objections, which arose on the construction that should be given to section 167(1) of the Public Procurement and Asset Disposal Act, relating to the framing of the Request for Review by the applicant, and assumption of jurisdiction by the 1st respondent. 49.Section 167(1) of the Public Procurement and Asset Disposal Act states as follows:“ 167.Request for a review (1)Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.” 50.My understanding, of section 167(1) of the Public Procurement and Asset Disposal Act, is this, that it provides for 2 things. One, it provides for the seeking of the remedy of administrative review, within 14 days, from a decision of a procuring entity. Two, it identifies who may seek that remedy, or who the parties to the review ought to be. Under the first part of section 167(1), it would be “a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” There are 2 things there, “a candidate or a tenderer” and “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” 51.Section 167(1) of the Public Procurement and Asset Disposal Act, should be read together with section 170 of the Act, which also dwells on parties to the review, and reads as follows:“ 170.Parties to review The parties to a review shall be—(a)the person who requested the review;(b)the accounting officer of a procuring entity;(c)the tenderer notified as successful by the procuring entity; and(d)such other persons as the Review Board may determine.” 52.Section 167(1) of the Public Procurement and Asset Disposal Act appears to be limited to “a candidate or a tenderer.” A “candidate or a tenderer” would refer to a party, whether a natural or an artificial person, who has participated in the tendering process as a bidder, or who has placed a bid, or who has submitted a tender, or has responded to a tender application by submitting a bid or tender, or has collected the tender documents from the procuring entity with an intent to place a bid, going by the interpretation given to those 2 terms by section 2 of the Act. Section 170 of the Public Procurement and Asset Disposal Act identifies the parties who are parties to the review proceedings before the 1st respondent. They would include the “candidate or a tenderer,” who is identified or defined, in section 170(a) of the Public Procurement and Asset Disposal Act, as “the person who requested the review,” and other parties, who would be the respondents and interested parties in the review application before the 1st respondent, being those defined in section 170(b), (c) and (d), as “(b) the accounting officer of a procuring entity; (c) the tenderer notified as successful by the procuring entity; and (d) such other persons as the Review Board may determine.” 53.The issue herein is that the applicant, in its Request for Review, dated 21st April 2026, moved the 1st respondent, as “a candidate or a tenderer,” because it pleaded, at paragraph 3 of the Request for Review, that it had submitted a bid. That pleading is elaborated at paragraph 6 of the affidavit in support of the review, sworn on 21st April 2026. However, the bit about “a candidate or a tenderer,” “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations,” was not pleaded in the Request for Review, and the affidavit, presenting the factual background to the review sought, did not refer to that latter bit. 54.The respondents argue that the omission or failure to plead that second bit of section 167(1) of the Public Procurement and Asset Disposal Act was fatal to the review. They argue that the qualifications of an applicant for review would be a combination of the 2 elements, “a candidate or a tenderer” and “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” They further argue that where the 2 elements are not pleaded in the Request for Review, the jurisdiction of the 1st respondent would not have been properly invoked, and the same 1st respondent cannot, on account of that omission, assume jurisdiction. 55.The applicant reacted to the arguments by the respondents, in their preliminary objections, by filing a supplementary affidavit, sworn on 4th May 2026, and a reply to the response, also dated 4th May 2026. The response, in the supplementary affidavit, is to the effect that the applicant had participated in the subject tender process and had submitted a responsive bid; the applicant had a legitimate expectation that the process would be conducted in accordance with the tender document, the Public Procurement and Asset Disposal Act and the Constitution; and that, being the current supplier of the goods the subject of the tender, it had a commercial interest in the outcome of the procurement process. The reply to the response does not advert to the matters the subject of the preliminary objection, being section 167(1) of the Public Procurement and Asset Disposal Act, with relation to “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” 56.So, did the applicant, by the supplementary affidavit and the reply to the response, cure the omission in the Request for Review, about “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” I do not think so. The reply to the response, does not advert to the matter at all. However, the supplementary affidavit does. The only part of that affidavit, which would be of some relevance would be the bit about the applicant being the current supplier of the goods the subject of the tender, and it having a commercial interest in the outcome of the procurement process. 57.A copy of the award made to the applicant, in the letter of 2nd December 2022, for supply of the same material, is exhibited. That tender, however, was for 2022-2023, and it has expired, hence the fresh cycle of tendering. The instant tender is for 2025-2026. There was no guarantee that the applicant would have it renewed. It was subject to competition, which came with some element of uncertainty, hence the argument that the applicant would suffer loss or damage, if the tender was not renewed, would not, on the face of it, hold water. It would carry some weight, if supported by proof of loss or damage, arising from breach of duty by the 2nd and 3rd respondents. I have not seen any proof of that in the supplementary affidavit. There is no allegation of, nor proof of it. 58.I am persuaded by the argument, advanced by the respondents, that the pleading, in the proceedings for administrative review, envisaged under section 167(1) of the Public Procurement and Asset Disposal Act, is the Request for Review. Sections 167(2) (3) and 168 of the Public Procurement and Asset Disposal Act specifically provide for a “request for review.” According to section 167(1), the administrative review is to be sought in such manner as may be prescribed. That prescription is in sections 167(2) (3) and 168 of the Public Procurement and Asset Disposal Act. 59.These provisions could be read together with Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020, which provided for how the Request for Review, under section 167 of the Act, was to be made in the format set out in the Fourteenth Schedule to the Regulations. The request was to state reasons for the complaint and it was to be accompanied by such statement as was considered necessary by the applicant. As a matter of practice, the statement takes the form of an affidavit. However, the Public Procurement and Asset Disposal Regulations, 2020, no longer applies, it was declared unconstitutional in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR), in a judgement rendered on 4th December 2025. Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020, cannot, therefore, be of any relevance in these proceedings, which were commenced after 4th December 2025. 60.The point, however, is that the Request for Review is the pleading envisaged under section 167 of the Public Procurement and Asset Disposal Act. It would be in the Request for Review that it would be pleaded that the applicant was “a candidate or a tenderer” in the tendering process, “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” Section 167 envisages the Request for Review, and nothing else. It is Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020, which is no longer operational, which envisaged a statement to accompany the Request for Review, essentially to present background facts, to elaborate on the pleadings in the Request for Review. In practice, that statement takes the form of an affidavit. An affidavit is not a pleading, it only places facts on record, to support the pleading. The statement, envisaged in Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020, could not have been a pleading. Michael Ngania vs. Elphas Munyolimo [2004] eKLR[2004] KEHC 406 (KLR), Richard Nchapi Leiyagu vs. Independent Electoral and Boundaries Commission & 2 others [2014] eKLR[2014] KECA 608 (KLR), Stephen Boro Githua vs. Family Finance Building Society & 3 others [2015] eKLR [2015] KECA 982 (KLR) and Superior Homes (Kenya) PLC vs. Water Resources Authority & 9 others [2024] KECA 1102 (KLR) all state the position that an affidavit is not a pleading. 61.An affidavit, or a document in the mould of that envisaged under Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020, would be an appendage to the pleading. It would be ancillary, subservient or secondary to the pleading, and not the other way round. A pleading is corrected by way of amendment, to or of the pleading itself, to seal the loopholes or gaps in it, by addition to it of any material that had been omitted. It cannot be amended by way of an affidavit or the statement envisaged under Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020. Neither can any omissions, in the Request for Review, be addressed by the filing of court process which the Act and the Regulations have not provided for. 62.The applicant purported to file a “Reply to Response.” The Public Procurement and Asset Disposal Act does not carry any provisions on the nature of the responses or reaction to the Request for Review. The Public Procurement and Asset Disposal Regulations did, however, provide for a response, under Regulation 205(3), taking the form of a Memorandum of Response, together with other documents. There was no provision, under the Public Procurement and Asset Disposal Regulations, for a response or reply to the memorandum of reasons. So, the document titled “Reply to Response” was filed without any foundation for its being lodged before the 1st respondent, and it ought to have been struck out. Both the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations do not have or carry provisions on amendment of the Request for Review, and whether there would be inherent power to allow amendment is an open question. 63.The Public Procurement and Asset Disposal Act was assented to on 18th December 2015, and commenced on 7th January 2016. I should not seek to re-invent the wheel, by attempting to construe section 167(1) of the Public Procurement and Asset Disposal Act, for the courts have, between 2016 and today, been faced with that task. The highest court, hierarchically, to address section 167(1), has been the Court of Appeal, in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR), where it pronounced that “a candidate or a tenderer” “must at very least claim to have suffered or to be at the risk of suffering loss or damage.” It asserted that, “It is not any and every candidate or tenderer who has a right to file for administrative review. Were that the case, the Board would be inundated by an avalanche of frivolous review applications.” 64.The High Court has followed, with similar determinations. In Space Contractors & Suppliers Investments Limited vs. Public Procurement Administrative Review Board & 23 others [2023] KECA 1457 (KLR), it was pronounced that, “a party invoking section 175 of the Act must strictly comply with section 167 thereof.” The court then went on to “agree with the decision in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR.” In Republic vs. Public Procurement Administrative Review Board & 2 others, Mfi Document Solutions Limited (Interested Party), Mal-Mart Enterprises Limited (Ex parte) [2024] KEHC 9582 (KLR), it was pronounced that, “In the wake of” James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR, “and, against the background that that is not in dispute the applicant did not plead loss or damage in its pleadings before the Public Procurement Administrative Review Board, the 1st respondent was bound, as much as I am bound, by the decision of the Court of Appeal, to reach the inevitable conclusion that the applicant’s request for review was fatally defective. That being the case, and for the purposes of determination of the instant application, the 1st respondent’s decision cannot be faulted on any of the grounds of judicial review.” 65.To these pronouncements, the applicant has placed before me only 1 decision of the High Court, in Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Electricity Generating Company PLC & 2 others (Interested Parties); Sinopec International Petroleum Services Corporation (Ex parte) [2024] KEHC 16676 (KLR), where, it is argued, a contrary view is stated. I am not persuaded that the court took a contrary view, for the excerpt from the judgement does not make a definitive pronouncement on section 167(1) of the Public Procurement and Asset Disposal Act, on the necessity to plead loss or damage by the party seeking review. In any event, there is a decision of the Court of Appeal on the matter, in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR), which settles the matter, until such time that a contrary decision, of the Court of Appeal, or a higher court, reverses the position. 66.The applicant has sought to address the matter, by relying on the pronouncements of the court on striking out of suits, for whatever reasons, which actions have been declared to drastic and draconian, to be adverted to as a last resort. That may be so. However, the Court of Appeal, in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR), has settled the matter, on section 167(1) of the Public Procurement and Asset Disposal Act, and the pronouncements of the courts, in such cases as Mwahima Mwalimu Masudi vs. Independent Electoral and Boundaries Commission & 3 others [2017] KEHC 2259 (KLR), Nicholas Kiptoo Arap Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR KECA 113 (KLR), James Mang’eli Musoo vs. Ezeetec Limited [2014] KEELRC 761 (KLR) and DT Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another [1980] eKLR [1980] KECA 3 (KLR), do not change that position. 67.Those decisions, in Mwahima Mwalimu Masudi vs. Independent Electoral and Boundaries Commission & 3 others [2017] KEHC 2259 (KLR), Nicholas Kiptoo Arap Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR KECA 113 (KLR), James Mang’eli Musoo vs. Ezeetec Limited [2014] KEELRC 761 (KLR) and DT Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another [1980] eKLR [1980] KECA 3 (KLR), did not turn on section 167(1) of the Public Procurement and Asset Disposal Act, in judicial review proceedings, founded on the Public Procurement and Asset Disposal Act, the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules, but on the provisions of the Civil Procedure Act and the Civil Procedure Rules, in ordinary civil suits, commenced under the ordinary provisions of the Civil Procedure Act and Civil Procedure Rules. I say ordinary, because Order 53 of the Civil Procedure Rules is not an ordinary provision in the Civil Procedure Rules, for it is not related in any way to the other provisions of the Civil Procedure Rules. It does not relate to proceedings under the Civil Procedure Act, for it is intended for the judicial review proceedings, provided for under sections 8 and 9 of the Law Reform Act, Cap. 26, Laws of Kenya. Order 53 of the Civil Procedure Rules, does not apply to ordinary suits commenced under the Civil Procedure Act, for it applies exclusively to the judicial review proceedings that are subject to it and to the Law Reform Act. 68.The applicant also seeks refuge in Article 159(2)(d) of the Constitution, on technicalities of procedure not being used to bring proceedings to an end, before affording the parties an opportunity to be heard, based on the substantive justice principle. It has cited some judicial authorities where that is emphatically pronounced. However, Article 159(2)(d) only applies to matters of procedure. It would be of no utility where the matters go beyond pure procedure, and touch on jurisdiction or aspects of it. It was asserted, in Punyua vs. Mwanik & 2 others [2026] KECA 585 (KLR), that, “A procedural technicality is a formality of pleading or filing, a defect of form that can be cured without going to the root of jurisdiction,” and that, “Article 159(2)(d) was designed to liberate courts from the tyranny of form over substance not to dissolve statutory jurisdiction clauses whenever they stand in the litigant’s way.” See also Abdullah Mangi Mohamed vs. Lazarus Beja & 5 others [2012] KEHC 706 (KLR). 69.Section 167(1) of the Public Procurement and Asset Disposal Act is not just about procedure. It goes to jurisdiction. That provision provides for or prescribes a remedy, of administrative review, from a decision of an administrator. A provision which provides for or prescribes a remedy, by stating that there exists a remedy or relief against some decision, is not procedural, it is beyond that, for it goes to jurisdiction. Section 167(1) prescribes the remedy of administrative review, and identifies the parties who would qualify to seek that relief, and specifies the qualifications for such parties. The entity which grants such relief, the 1st respondent herein, established under section 27, and whose functions and powers are delineated under section 28, both of the Public Procurement and Asset Disposal Act, assumes jurisdiction in the circumstances stated in section 167(1) of the Public Procurement and Asset Disposal Act. 70.Section 167 is in Part XV of the Act, headed “Administrative Review of Procurement and Disposal Proceedings.” The jurisdiction of the 1st respondent is partly stated in sections 28 and 167 of the Act. Section 28 states the functions of the 1st respondent as the “(a) reviewing, hearing and determining tendering and asset disposal disputes; and (b) to perform any other function conferred to the Review Board by this Act, Regulations or any other written law.” The “reviewing, hearing and determining tendering and asset disposal disputes,” that section 28 talks about, is of the “administrative review” that section 167 is about. The jurisdiction over administrative review is assumed, in the circumstances stated in section 167(1), where the review is by “a candidate or a tenderer,” “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” The 1st respondent would have no jurisdiction to entertain an “administrative review,” unless it is brought by “a candidate or a tenderer,” “who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations.” 71.The rest of the provisions of section 167(1) of the Public Procurement and Asset Disposal Act are also relevant, and they also go to jurisdiction. Under section 167(2), jurisdiction is assumed upon the filing of, “A request for review,” and the making of a “refundable deposit,” “of not less than ten per cent of the cost of the tender.” The 1st respondent would have no jurisdiction to entertain a claim where “A request for review” has not been filed; and a “refundable deposit,” “of not less than ten per cent of the cost of the tender,” has not been made. The proviso to section 167(2) also goes to jurisdiction, with respect to the making of the refundable deposit, there would be jurisdiction to entertain a claim, even where section 167(2) is not complied with, so long as the tenders in question are “reserved for women, youth, persons with disability and other disadvantaged groups.” Section 167(4) is also a matter of jurisdiction, for it excludes certain aspects of the tendering process from the administrative review process, prescribed under section 167(1). The excluded aspects of the tendering process include “(a) the choice of a procurement method; (b) a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; and (c) where a contract is signed in accordance with section 135 of this Act.” These are excluded from the jurisdiction of the 1st respondent. 72.The applicant seeks to separate the matter of locus standi, to bring the administrative review proceedings, and jurisdiction. Jurisdiction and locus standi are intertwined. Where a party lacks locus standi, the court or tribunal, before whom the party files its claim, would have no jurisdiction to entertain the claim, on account of lack of capacity of the parties before it. In the instant case, “a candidate or a tenderer” would have the requisite locus standi, to seek administrative review, so long as the “candidate or a tenderer” “claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulation,” and there would be jurisdiction for the 1st respondent, as there would be a basis or foundation to assume jurisdiction, in the circumstances. However, “a candidate or a tenderer,” who does not claim “to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations,” would have no locus standi to initiate or seek the administrative review, and the 1st respondent would have no basis or foundation to assume jurisdiction over such a claim. 73.The locus standi or capacity to seek the review would stem from having suffered loss or being exposed to the risk of suffering such loss, from a breach of a duty by the procuring entity. Where no such loss has been suffered or there is no risk of the same, then locus standi or capacity to sue would not accrue, and the candidate or tenderer would not be able to file a competent Request for Review, and the 1st respondent would not have jurisdiction to entertain an incompetent Request for Review. 74.The final conclusion, therefore, on the point relating to the determination of the preliminary objections, by the 1st respondent, is that the law was on the side of the 1st respondent, and the 1st respondent properly acted on the matter, based on what is required by the law, in declining to assume and exercise jurisdiction, and in striking out the Request for Review. So much for section 167(1) of the Public Procurement and Asset Disposal Act. 75.The other issue relates to the competence of prayer 4 of the Originating Motion, which invites the court to allow the prayers sought in the Request for Review, dated 12th April 2026. Of course, a determination under prayer 4 would be academic, for I have already found and held that the 1st respondent acted properly and within the law, in allowing the preliminary objections and striking out the administrative review sought. 76.However, something needs to be said about the prayer. It invites the court to do that which a court, exercising a judicial review jurisdiction, has no jurisdiction to do. Judicial review only empowers or enables the court to review the decision from a standpoint of the process leading up to the making of the decision, to assess whether that process was fair, lawful, reasonable or rational, proper, among others. Judicial review is not about the merits of the decision, and the court is not required to substitute the decision of the 1st respondent with its own. Doing that would amount to conducting a merit review, and deciding on the basis of what the court thinks ought to have been the proper or right decision for the 1st respondent to make. That is what prayer 4 invites the court to do, which invitation I hereby decline to accept, for acting in that manner would be tantamount to an illegality. Even if I were to make the certiorari order, in terms of prayer 3, and quash the decision of the 1st respondent, of 12th May 2026, I would have no jurisdiction to go on and make the order in prayer 4. The best I would do, would be to revert the matter to the 1st respondent, to conduct the administrative review afresh. 77.I am persuaded by the submissions by the respondents, that the application for judicial review orders in this case is a sort of a disguised appeal, designed to have the decision of the 1st respondent substituted with that of this court. The application seeks to have the decision of the 1st respondent reviewed on its merits, rather than on the basis of judicial review. The law, under the Public Procurement and Asset Disposal Act, does not provide for appeals, from the decision of the 1st respondent. What it provides for, under section 175 of the Public Procurement and Asset Disposal Act, is judicial review, which can be sought either under sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, by way of ordinary judicial review proceedings; or the Fair Administrative Action Act, by way of an Originating Motion; or the Constitution, by way of a constitutional petition. 78.One of the respondents has submitted on the judicial order of prohibition, around what it entails and the circumstances under which it would issue, making a pitch that I should not consider granting it in this case. Only 2 substantive prayers are sought in the Originating Motion, at prayers 3 and 4. Prayer 3 is for certiorari, while prayer 4 is not for a judicial review order, rather it is a follow-up prayer, should the certiorari be granted, with respect to the orders that the court should make, upon quashing the impugned decision of the 1st respondent. Prohibition is sought at prayer 2, not for a substantive order, but as an interim measure. That prayer was spent, upon the making of the interim or temporary order of 26th May 2026. It is, therefore, not available for granting at this stage. 79.In the end, I am not persuaded that the application, in the Originating Motion, dated 26th May 2026, is adequately substantiated or established, and I find and hold that it has not reached the threshold for grant of the prayers sought. It is hereby disallowed and dismissed. The temporary or interim order, made on 26th May 2026, is hereby discharged. The Originating Motion herein, dated 26th May 2026, is disposed of in those terms. Each party shall bear its own costs. Orders accordingly. DELIVERED VIA CTS, AND VIRTUALLY, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 6TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Luseno and Mr. Musau, instructed by Majanja Luseno & Company, Advocates for the applicant.Mr. Munene Wanjohi, instructed by the Attorney General, for the 1st respondent.Mr. Joseph Muchai, Advocate for the 2nd and 3rd respondents.Ms. Kerubo, instructed by AE Kiprono & Company, Advocates for the 4th respondent.