[2023] KEHC 24951 (KLR)

Shemax Consult Limited v Public Procurement Administrative Review Board; National Health Insurance Fund (Interested Party) (Miscellaneous Civil Application E102 of 2023) [2023] KEHC 24951 (KLR) (Judicial Review) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24951 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application E102 of 2023

JM Chigiti, J

November 7, 2023

Between

Shemax Consult Limited

Applicant

and

Public Procurement Administrative Review Board

Respondent

and

National Health Insurance Fund

Interested Party

Judgment

Background 1. On 30th May, 2023 the National Health Insurance Fund (NHIF) [Interested Party] as the procuring entity, invited sealed tenders using the open competitive method in regards to six (6) tenders. The six (6) tenders being:a.NHIF/002/2022-2023; for Provision for consultancy to provide Actuarial Services;b.(NHIF/322022­2023;NHIF/0332022-2023: NHIF/035/2022-2023): Provision for Supply, Delivery and Implementation of endpoint solution and email security;c.NHIF/033/2022-2023; Provision for Insurance and Brokerage Services; andd.NHIF/035/2022-2023: Provision for Co-Insurance and facultative insurance services for Group Personal Accident and WIBA Insurance Services (consortium) for Civil Servants and National Youth Service;e.NHIF/036/2022-2023; Provision for -Co-Insurance and facultative insurance services for Group Life & Last Expense Insurance Services (consortium) for Civil Servants and National Youth Service:f.NHIF/037/2022-2023; Provision for emergency road evacuation services for National Health Insurance Fund Scheme Members

2. The invitation was by way of an advertisement published on the procuring entity's website www.nhif.or.ke and the Public Procurement Information Portal www.tenders.go.ke as well as in My Gov Publication of 30th May, 2023. The submission deadline for the six (6) tenders was scheduled for Wednesday, 14th June, 2023 at 10:00 a.m.

3. On 9th June, 2023 the Director General, Public Procurement Regulatory Authority (hereinafter 'PPRA' or "the Authority") wrote a letter of even date to the procuring entity raising concerns with the tender documents they [procuring entity] were using in the subject tenders; specifically, the eligibility requirements and evaluation criteria in the tender documents.

4. Subsequently, on 13th June, 2023 the NHIF [Interested Party] wrote to PPRA confirming that the procuring entity had arrived at a decision to cancel the subject tenders. On the same date, and being a day before the tender submission deadline, the NHIF [Interested Party] notified tenderers of the termination of the six (6) tenders.

5. Soon after, on 16th June,2023 a party by the name EBM Africa Insurance Agency Company Ltd filed a Request for Review No. 43 of 2023 seeking among others an order quashing the decision published on 13th June, 2023 cancelling the six (6) tenders.

6. Thereafter, on 7th July, 2023 in exercise of the powers conferred upon it under the Act, the Board [Public Procurement Administrative Review Board] made their final orders with respect to Request for Review No. 43 of 2023: declaring that the termination of the six (6) tenders was not in accordance with section 63 of the Act thus null and void; An order quashing the decision published on 13th June, 2023 terminating the six (6) tenders was issued; and the NHIF [Interested Party] was directed to proceed with the procurement process in strict compliance with the Applicable law taking into considerations the findings of the Board made in this decision.

7. Notably, none of the parties in Request for Review No. 43 of 2023 sought Judicial Review, in the High Court, of the board's decision of 7th July, 2023; Hence the board's decision became final and binding ‑ on the parties ‑ after the lapse of 14 days from 7th July, 2023.

8. On 10th July, 2023 the NHIF [Interested Party] wrote to the PPRA seeking an advisory opinion on implementation of the final decision ‑ board's decision of 7th July, 2023 in Request for Review No. 43 of 2023 ‑ citing the fact that it was unable to implement the said final orders: for reason that no tender had been received at the point of cancellation of the six (6) tenders, so as to now proceed with opening and evaluation; and, that the initial tender documents could not be used due to the gaps identified by tenderers, the media, and PPRA.

9. In a letter dated 20th July, 2023 the PPRA responded to the NHIF's request for an advisory opinion on implementation of the board's decision in Request for Review No. 43 of 2023; and noted that the board's decision did not obligate the procuring entity to proceed with the initial tender process, more so after establishing that the initial tender documents could not be used due to the identified material governance issues and gaps.

10. In their response, PPRA emphasized on the need to ensure that the NHIF [Interested Party] acted in accordance with the Public Procurement and Asset Disposal Act, and further observed that from the board's decision, the NHIF being the procuring entity, could not proceed to re-tender before procedurally terminating the said tenders - in accordance with Section 63 of the Public Procurement and Asset Disposal Act.

11. The PPRA also noted that in the event the NHIF/procuring entity elected to terminate the subject tenders, it ought to:i.Consider communicating the termination to all tenderers that had sought clarifications and/or acquired the tender documents and forwarded their details to it.ii.Further place a termination notice on the PPIP and on its website.iii.It ought to provide or outline the specific reasons for termination as guided by the Board in its decision in Request for Review No. 43 of 2023. iv.Report the termination of the tenders to PPRA through PPIP in conformity with the PPRA Circular No. 04/2022 of 1st July, 2022 on Mandatory Reporting Requirements by procuring entities.

12. Based on that, the NHIF [Interested Party] issued a series of letters dated 24th July, 2023 communicating the termination of all the six (6) tenders, and further informed the tenderers that the same tenders would be re-advertised in due course.

13. On 22nd August, 2023 the NHIF/Procuring Entity [Interested Party] advertised three (3) tenders being:i.Tender No. NHIF/001/2023-2024 for Provision of Insurance Brokerage Services;ii.Tender No. RFP/NHIF/001/2023-2024 for Provision of Consultancy on Actuarial Services: andiii.Tender No. NHIF/002/2023-2024 for Provision for Emergency Road Evacuation Services for National Health Insurance Fund Scheme Members.

14. Aggrieved by the NHIF [Interested Party's] decision to advertise the three (3) tenders, on 30th August, 2023 the Applicant herein filed a Request for Review before the Board, Application No. 62 of 2023 seeking: An order quashing the procurement process of the re-advertised three (3) tenders, and an order compelling the NHIF/procuring entity to re-upload/proceed/progress with the procurement process of the six (6) tenders to its conclusion in line with the Ruling of Application No. 43 of 2023.

15. The Applicant’s Request for Review Application No.62 of 2023 was struck out by the Respondent [Board] for lack of jurisdiction. The stated request for review, and the resulting board’s decision forms the subject of this instant Application.

The Application 16. Following granting of leave, the Applicant by a Notice of Motion dated 27th September, 2023 – brought under Articles 10, 47, 50, 165 & 227 Constitution of Kenya, 2010; Section 175 of the Public Procurement and Asset Disposal Act; and, Order 53, Rule 1, 2, and 3 of the Civil Procedure Rules, 2010 – seeks for:1. An Order Of Certiorari do issue bringing into the High Court and quashing the entire decision of the Respondent made on 20th September, 2023 in Application No. 62/2023 of 30th August, 2023 in Shemax Consult Limited and the Accounting Officer, National Health Insurance Fund.2. An Order Of Mandamus do issue directing the Board, constituted by other members other than Mr. Jackson Awele, CPA Isabella Juma, Mr. Daniel Lagat, Dr. Susan Mambo and Alice Oeri to hear and determine the Request for Review dated 30th August, 2023, Shemax Consult Limited and the Accounting Officer, National Health Insurance Fund.3. The costs of this Application be provided for.

17. This Application is accompanied by ‑ both dated 25th September, 2023 – a Statutory Statement, and a Verifying Affidavit sworn by Shadrack Munyambu, Managing Director of the Applicant. The Application is based on the grounds in the statutory statement; and as the same grounds are stated on the face of the Application.

Applicant’s Case 18. It is the Applicant’s case that on 22nd August, 2023 the Interested Party (re)advertised three (3) tenders: Tenders No. NHIF/001/2023-2024 for provision of Insurance Brokerage Services, Tender No. RFP / NHIF /001/2023-2024 for provision for Actuarial Services; and Tender No. NHIF/002/2023-2024 for provision for Emergency Evacuation Services for National Health Insurance Fund Scheme Members (herein after collectively referred to as “subject tenders”)

19. It is averred, by the Applicant, that the closing date for submission of bids was 31st August, 2023. The Applicant maintains that on 29th August, 2023 being within the legally stipulated fourteen (14) days, they [Applicant] challenged the decision to advertise the said subject tenders.

20. Accordingly, that the Request for Review was Application No. 62/2023 of 30th August 2023 in Shemax Consult Limited and the Accounting Officer, National Health Insurance Fund. Resultantly, that the Respondent herein [also referred to as “Board”], by its decision made on 20th September, 2023 struck out the request for review on the basis that it was filed outside the 14 days’ period, while it is required by the Public Procurement and Asset Disposal Act to be filed within the 14 days’ timeline.

21. To the Applicant, the decision of the board is prima-facie irrational, unlawful, and foreclosed the Applicant's right to be heard. Further, the Applicant claims that subsequent to striking out of the Request for Review, the Interested Party herein [NHIF], even before the expiry of the 14-day period (as stipulated under section 175(1) of the Public Procurement and Asset Disposal Act) did on 21st September, 2023 issue a press release intending to continue with the impugned procurement process.

22. That this illegality is also demonstrated by the fact that the Interested Party [NHIF] had insisted on receiving bids on 26th September, 2023. Therefore, its averred, that the decision to proceed with the procurement process, in the circumstances, is prima facie illegal.

23. As per the Applicant, this Application will be rendered nugatory and public funds will be utilized towards a cause whose legality and propriety are challenged through these proceedings ‑ with the effect that should this case succeed, there will be no means of recovering the said funds.

24. Further, the Applicant points out that the High Court has supervisory jurisdiction over the Respondent [board] under Article 165(6) of Constitution of Kenya, 2010 with powers to make any such orders or give directions. The Application is opposed by the Respondent, and by the Interested Party.

Respondent’s Case 25. In response to and opposing the Application, the Respondent filed their Replying Affidavit dated 12th October, 2023 deposed by James Kilaka, the acting secretary of the board. It is the deponent position that this instant Application is an appeal against the Respondent’s decision dated 20th September, 2023.

26. The Respondent deponed conceding to filing/existence of the Applicant’s Request for Review Application, noting that it was dated 29th August 2023 and filed on 30th August 2023 as Request for Review Application No.62 of 2023 against the decision of the Accounting Officer, National Health Insurance Fund in relation to re-advertisement of subject tenders.

27. The Respondent maintains that it [board] in its decision, in the Request for Review, considered the parties' pleadings, documents, written and oral submissions, the list and bundle of authorities, together with the confidential documents submitted by the Interested Party to the Board pursuant to Section 67(3) (e) of the Public Procurement and Asset Disposal Act.

28. Resultantly, that on 20th September, 2023 the Respondent [board] ‑ in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act ‑ made the following final orders with respect to the Request for Review:a.The Applicant's Request for Review dated 29th August, 2023 and filed on 30th August, 2023 is hereby struck out for want of jurisdiction.b.Given our findings herein, each party shall bear its own costs in the Request for Review.

29. It is contended that before determining the issues considered for determination, the Respondent [at pages 21 to 27] in its Decision dated 20th September, 2023 dispensed with a preliminary aspect arising from the proceedings before it; which emanated from an application by the Applicant (Shemax Consult Limited) challenging filing of the therein Respondent's (National Health Insurance Fund) Memorandum of Response sworn on 12th September, 2023 by Dr. Samson Kuhora and filed on the morning of 13th September, 2023.

30. That, on the preliminary issue, the board found that the amendment made by the Respondent (National Health Insurance Fund) in their Memorandum of Response was merely to substitute the then deponent, and the then Applicant (Shemax Consult Limited) had not demonstrated the prejudice, if any, that it suffered or would likely to suffer with the amended response.

31. The Respondent avers that the first issue for determination ‑ in their decision of 20th September, 2023 ‑ was as to whether they [board] had the jurisdiction to hear and determine the Request for Review Application No.62 of 2023.

32. Consequently, that they [board] considered the circumstances in the Request for Review that ought to determine the period when the Applicant (Shemax Consult Limited) should have approached them [Board]; and made a finding that the letter dated 24th July, 2023 clearly communicated the termination decision by the Interested Party (National Health Insurance Fund).

33. Thus, that decision in the 24th July, 2023 letter ought to have been challenged to arrest the intended re-advertisement. That once the 14 days lapsed from 24th July, 2023 the re-advertisement of 30th August, 2023 amounted to fresh procurement proceedings; and hence, the fresh procurement proceedings can only be challenge by any candidate or tenderer independent of any issues anchored on the previous/related proceedings culminating with the letter of 24th July, 2023.

34. Interestingly, the Respondent concedes and acknowledges that the Applicant (Shemax Consult Limited) was not among those candidates notified of the termination. As per the Respondent [board], it is only the tenderers that a procurement entity is required to notify, which the Applicant was not a tenderer or notified; However, that this appeared not to be an issue for it and preferred not to challenge the said termination.

35. Notably, to the Respondent [board] they found the breach of duty by the Interested Party (National Health Insurance Fund), if any, occurred on 24th July, 2023. As such, that the Applicant (Shemax Consult Limited) ought to have lodged the Request for Review within 14 days from the said date [24th July, 2023]; thus, that the Applicant had between 25th July, 2023 and 7th August, 2023 to seek administrative review before them [Board/Respondent].

36. Therefore, that the Request for Review having been filed on 30th August, 2023 the same was time barred having been filed outside the statutory period of 14 days ‑ of occurrence of alleged breach of duty imposed on the Respondent (NHIF or board) by the Act ‑ in accordance with Section 167(1) as read with Regulation 203(2)(c)(i) of the Act, and divested the Respondent of its jurisdiction to hear and determine the Request for Review.

37. According to the Respondent their [board’s] Decision dated 20th September, 2023 was fair, reasonable, rational, lawful and did not overreach its mandate and jurisdiction; also did not foreclose the Applicant's right to be heard.

38. The Respondent maintains that they have at all times upheld, and promoted the integrity and fairness of the procurement procedures (as required by law), and has not flouted any law, nor acted in excess of its powers. That the rules of natural justice in the exercise of its statutory mandate as under Section 28; and powers as under Section 173 of the Public Procurement and Asset Disposal Act were observed and followed.

39. The Respondent asserts that they ensured all parties to the Request for Review application were granted an opportunity to be heard on all issues that emerged from parties’ pleadings, cases, and confidential documents - submitted pursuant to section 67 of the Public Procurement and Asset Disposal Act - through their oral and written submissions, and by considering and interrogating all the material documentation and information in the Request for Review before determining the said application.

40. Particularly, that the Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety, and/or unfairness in the manner in which the Respondent [board] considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision dated 20th September, 2023 in the Request for Review No. 62 of 2023.

41. Nevertheless, the Respondent contended that in the event this Honourable Court finds the Notice of Motion application meritorious - leading to quashing of its [Respondent's] Decision dated 20th September, 2023 - in the interest of justice, the Honourable Court be pleased to remit the Request for Review application for re-consideration by them [Respondent] subject to Court's directions; especially, since the Respondent is the specialized central independent body mandated to review, hear, and determine tendering disputes.

Interested Party’s Case 42. In further response to and opposing the Application, the Interested Party filed their Replying Affidavit dated 12th October, 2023 sworn by Elijah Wachira, the chief executive officer at Interested Party. It is deponed that the instant Application is frivolous, fatally defective, vexatious, unmerited, unfounded and is otherwise an abuse of the Court process.

43. The Interested Party states that an application for judicial review concerns control by courts of powers, functions, and procedures of administrative authorities and bodies discharging public functions; and not the substantive review of a decision.

44. Thus, that in order to succeed in such an application, an Applicant must demonstrate that the decision or act complained of is tainted with illegality, irrationality, and procedural impropriety. Being merely dissatisfied with the decision of a public institution is not a ground for Judicial Review.

45. It is the Interested Party’s position that the instant Applicant's Notice of Motion Application has not demonstrated charges of illegality, irrationality, and/or procedural impropriety against the decision of the Respondent [board] rendered on 20th September, 2023.

46. To the Interested Party, the Respondent exercised its power and discretion as a quasi-judicial organ judiciously; and thus the instant suit is an attempted appeal against the Respondent’s decision - on the basis of the merits of the request for review ‑ which is outside the ambit of Judicial Review proceedings and outside the jurisdiction of this Court.

47. It is acknowledged that on 30th August, 2023 the Applicant filed a Request for Review Application No. 62 of 2023 against the Interested Party, with the board/Respondent; in the Review seeking orders against the decision of the Interested Party in relation to re-advertisement of the three (3) tenders.

48. That the Board noted the Applicant was not among those notified of the termination of the tenders on 24th July, 2023 - since it was not a tenderer within the meaning ascribed under the Act - and its Request for Review did not contest or challenge their non-issuance of the stated termination letter of 24th July 2023 by the Interested Party - as issue for determination by the Board the Review Board therefore did not pronounce itself on the same.

49. As per the Interested Party, among the issues framed by the Board for determination was whether the Board had jurisdiction to hear and determine the Request for Review. The Board noted from the onset that courts and decision making bodies should only act in cases where they have jurisdiction; and where jurisdictional question arises from the pleadings or is raised by a party to the proceedings, a Court or tribunal seized of a matter must as a matter of prudence enquire into it before taking any further steps in the matter.

50. That the Board noted its jurisdiction was provided for and also limited under Part XV of the Act titled Administrative Review of Procurement and Disposal Proceedings specifically in Section 167 of the Act which provides for what can and cannot be subject to proceedings before the Board. The Board further noted that it derived its powers from Section 172 and 173 of the Act; and stated that an applicant who seeks to invoke the jurisdiction of the Board must do so within the aforesaid provisions.

51. Also, that the Board went on to states that under Section 167(1) of the Act, an aggrieved candidate, or a tenderer is allowed to seek administrative review within 14 days of notification of award, or from the date of occurrence of alleged breach of duty imposed on a procuring entity by the Act and Regulations 2020 at any stage of the procurement process in a manner prescribed.

52. The Interested Party stated that the Board went on to cite verbatim Regulation 203 Part XV- Administrative Review of Procurement and Disposal Proceedings of Regulations 2020 as read with the Fourteenth Schedule of Regulations 2020 prescribes the format of the request for review.

53. The Board affirmed that an aggrieved candidate or tenderer invokes the jurisdiction of the Board by filing a request for review with the Board Secretary within 14 days of (i) occurrence of breach complained of, having taken place before an award is made or (ii) notification of intention to enter into a contract having been issued or (iii) occurrence of breach complained of, having taken place after making of an award to the successful tenderer.

54. That according to the Board, it opined that it was the letter of termination of the six (6) tenders dated 24th July, 2023 which triggered the re-advertisement of three (3) tenders on 22nd August, 2023 that formed the basis of the Applicant's complaint before the Board, and was therefore the alleged breach that ought to have been challenged by the Applicant, or any other aggrieved candidate or tenderer to the procurement proceedings.

55. It is asserted that the Board noted the Interested Party’s letter of 24th July, 2023 clearly communicated the termination decision, and the intention to re-advertise, and that it was this letter that ought to have been challenged to arrest the intended re-advertisement. That the Board held that once 14 days lapsed from the 24th July 2023, the re-advertisement of 22nd August, 2023 amounted to fresh procurement proceedings which any candidate or tenderer could only challenge independent of any issue anchored on the previous/related proceedings culminating with the letter of 24th July, 2023.

56. To the Interested Party, the Board therefore correctly interpreted the provisions of Section 167(1) of the Act read with Regulation 203 (2)(c) of Regulations, 2020 by correctly holding that breach of a duty imposed by law on them [Interested Party], occurred on 24th July, 2023 and as such, the Applicant ought to have lodged the Request for Review within 14 days from the said date, which it did not.

57. Further, that it was after analysing the law and statute on computation of time that the Board clarified the 14 days started running from 25th July, 2023 and lapsed on 07th August, 2023; thus, that the Applicant was statute barred when they lodged their Request for Review, before the Board on 30th August, 2023.

58. In downing its tools, it is claimed, that the Board found it lacked jurisdiction to hear and determine the Request for Review filed by the Applicant on 30th August, 2023 for being time barred having been raised outside the statutory period of 14 days of occurrence of alleged breach of duty imposed on the Respondent by the Act in accordance with Section 167(1) of the Act read with Regulation 203(2)(c)(i) of Regulations 2020.

59. The Interested Party maintained that this Honourable court is only mandated to examine the record of the Respondent [Board] and satisfy itself that in coming to the decision it did, the Respondent did not expose itself to demonstrated charges of illegality, irrationality and procedural impropriety.

60. That this Honourable Court can only interfere with an act of executive authority or administrative functionary if it can be shown that such authority contravened the law; and it is for the Applicant who asserts that the Respondent has contravened the law to establish that proposition.

61. To the Interested Party, the Applicant has not demonstrated that the Respondent [Board] failed to consider relevant or pleaded matters of such a nature that if they had been considered, the outcome could have been different, specifically on the computation of time within which to lodge its Request for Review. That from the decision of the Respondent of 20th September, 2023 it exhaustively dealt with the issue of computation of time - between the date of the act complained of and the date of lodging the Request for Review.

62. It is averred that there is a distinction between an Appeal and Judicial Review - in that an Appellate Court makes a finding on merits of the case before it, and sets aside such decision if warranted and hands down what it believes to be the correct Judgment; While a Judicial Review Court by contrast cannot set aside a decision merely because it believes that the decision was wrong on the merits.

63. Further, that Judicial Review is concerned only with the lawfulness of the process by which a decision was arrived at and can set it aside only if that process was flawed in certain defined limited respects.

64. The Interested Party points out that grounds advanced by the Applicant are about the substance of the decision by the Respondent issued on 20th September, 2023 which ought to have been the subject of an appeal and not judicial review. Additionally, that the Applicant's grounds in the Statement and Affidavit sworn on 25th September, 2023 do not disclose any illegality, irrationality, and procedural impropriety against the decision of the Respondent.

65. The Interested Party maintains that the Board’s decisions were made in accordance with the express provisions of the laws on computation of time: contrary to the allegations of impropriety against the Respondent, and are devoid of any specifics.

66. Also, that the Applicant has not demonstrated the Respondent acted without jurisdiction, or ultra vires, or contrary to the provisions of a law, or in gross unreasonableness, or acted unfairly in the decision making process.

67. It is maintained that this instant application is an attempted appeal against the decision of Respondent - as it raises no ground of illegality, irrationality, and procedural impropriety - against the Respondent; Hence falls outside the ambit of the Judicial Review court which is limited to investigation as to the legality of exercise of power and authority by a public body seized with administrative powers.

68. In the end, the Interested Party contended that the Notice of Motion dated 27th September, 2023 is devoid of merit and prays that the same be dismissed with costs, to them [Interested Party].

Parties’ Submissions 69. In advancing their cases, parties filed their respective written submissions. The Applicant’s written submissions were dated 12th October, 2023 where it was submitted that the decision of the Board is prima-facie irrational, unlawful, and foreclosed the Applicant's right to be heard.

70. It is posited that subsequent to striking out the Request for Review, the Interested Party even before the lapse of the fourteen (14) days period contemplated under section 175(1) of the Act, did on the 21st September, 2023 issue a press release intending to continue with the procurement in question. As far as insisting on receiving of bids on 26th September, 2023; Which decision to continue with the procurement is prima facie illegal. Reliance was placed on the case of Council of Civil Unions vs. Minister for the Civil Service, (1985) A.C. 374, 410 where the Privy Council set out the three grounds for review which are: illegality, irrationality, and procedural impropriety.

71. The Applicant submits that in handling the request for review ‑ Application No.62 of 2023 of 30th August, 2023 ‑ the Respondent neither understood correctly the law that regulates its decision making, nor give effect to it. Further, that the decision is irrational because: The Respondent interpreted Section 167 erroneously, and hence arrived at an erroneous decision, since Section 167 of the Act allows the filing of a Request for Review within a period of fourteen (14) days.

72. That in error, the Respondent struck out the Request for Review by its decision dated 20th September, 2023 ‑ on the basis that the said request had been filed out of time, and that the Respondent had no jurisdiction; hence leading to the Applicant lacking locus standi.

73. It is submitted that as per section 175 of the Public Procurement and Assets Disposal Act, the Applicant has filed the Judicial Review Application for purposes of quashing the said decision made by the Board. That the Respondent's decision, on the review, was unreasonable and untenable since it denies the Applicant the right to be heard.

74. Resultantly, it is averred, that the Respondent was irrational and committed an illegality by striking out the Request for Review for want of jurisdiction; whereas it was filed before lapse of the fourteen (14) days - as provided by the law in Section 167 of the Public Procurement and Assets Disposal Act.

75. Further, it is posited that it was an illegality for the Interested Party continuing with the procurement process even before the lapse of the fourteen (14) days period contemplated under section 175(1) of the Act for the Applicant to challenge the Board decision which catapulted to this proceeding. The Applicant submits that no Judicial Tribunal should ever allow itself to have its jurisdiction ousted or taken away, unless on very clear basis.

76. The Applicant posited that section 167, clearly provides that there are two avenues that are open for one to approach the Tribunal. In this case, the Applicant followed the avenue of filing the Request within fourteen (14) days ‑ from the date of occurrence of the alleged breach at any stage of the procurement process since the advertisement of the said Tenders.

77. In their submissions, the Applicants maintain that if they [Applicant] did not have the locus standi, or the Respondent [Board] did not have the jurisdiction to determine the Application, the Respondent ought not to have referred the Applicant and the Interested Party to agree on the issues in question, as stipulated in the Request for Review ‑ and thereafter, record a consent which was then to be filed with the same Board that claims to lack the jurisdiction to hear the Request for Review.

78. That where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or any Act of Parliament, that procedure should be strictly followed. The case of Speaker of the National Assembly vs Karume (Civil Application No.92 of 1992) KECA 42 (KLR) was relied on.

79. Flowing from that decision, its contended that in the instant matter, grievances with regard to either public procurement or Asset Disposal should be determined by the Respondent. That had such a grievance been filed in any other forum, then such a forum would not have jurisdiction in light of Section 167 of the Public Procurement and Assets Disposal Act. Relied on the decision of Selex Sistemi Integrati vs the Public Procurement and Administrative Review Board & others (2008) eKLR, where it was observed that a provision ousting the ordinary jurisdiction of the court must be construed strictly meaning, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.

80. Notably, that Articles 48, 50 and 159 of the Constitution of Kenya, 2010 informs that it was wrong and totally unreasonable for the Respondent to have refused to hear the Request for Review citing want of jurisdiction. That irrespective of whether the Request for Review was merited or not, the position taken by the Respondent is so fundamentally erroneous, and if allowed to take root will mean that grievances with regard to tendering process will not be given any chance of being heard on their merits.

81. The tendering processes are by definition, as per Article 10, 201, and 227 of the Constitution of Kenya, 2010 supposed to be carried out in an environment that is open, transparent, and corruption free; and where any person who has a grievance with regard to any of the tendering processes, the same principle of openness and transparency entitles such a person to easily approach the Respondent, to penetrate such a grievance.

82. It is submitted that where the Respondent who tends to self-limit its powers is given a chance to know what its true jurisdiction is. And as such, that this case has merit and the Application for Judicial Review orders against the order of the Respondent be allowed.

83. The Respondent [Board] filed their written submissions dated 27th October, 2023. It is submitted that it is settled law on when orders of certiorari and mandamus can issue. On certiorari, it is where the decision maker acts in excess of jurisdiction and in want of the substance and the process of the law. On mandamus, it is used to compel the performance of a public duty which is imposed by statute and where that person or body has failed to perform the duty to the detriment of the party who has legal right to expect the duty to be performed. Case of Kenya National Examination Council v R (Civil Appeal No.266 of 1996 is relied upon.

84. Additionally, that on the elements of unreasonableness, abuse of power, irrationality, and irrelevance to be: direction to the law; consideration of relevant arguments; non-consideration of irrelevant matters; and reasons for the decision. The case of Associated Provincial Pictures House Ltd vs Wednsburry Corporation (1974) 2 ALL ER 680 is relied on.

85. On the Respondent’s jurisdiction to hear the request for review, it was posited that matters as to tenders is a jurisdiction of the [Respondent] Public Procurement Administrative Review Board. The same is provided for under section 28 of the Public Procurement & Asset Disposal Act 2015.

86. That jurisdiction is also limited under section 167 of the Act, which section provides that a candidate/tenderer who claims to have suffered a risk, loss or damage may seek administrative review within 14 days of notification or award or date of occurrence of the alleged breach.

87. It is claimed that the Respondent [Board] noted that, vide a letter dated 24th July 2023 the Procuring Entity clearly communicated the termination decision and the intention to re advertise and that it’s the letter that ought to have been challenged, and that the Applicant was outside the 14 days required by Act. Therefore, the Board did not have jurisdiction to hear the request for review before it. That the courts have held that jurisdiction is everything and without it the court must down its tools.

88. The Respondent contends that the procedure for Request for Review is provided for in law and the exercise of jurisdiction by the Respondent has statutory anchoring as well. To that extent that the Respondent had no jurisdictional competence to determine the request for review.

89. On whether the Respondent accorded fair hearing to all parties, it is submitted that fair hearing is according every party an opportunity to be heard which requirement was met by the Respondent, when the request for review was filed, parties notified of the same, and given time to file their responses with the opportunity to make submissions before the Respondent [Board].

90. In particular, that the Applicant was given an opportunity to file its arguments and an opportunity to submit orally and after the submissions were made by both parties, the Respondent gave its determination. That the analysis of the arguments and the reasons for the decision are captured in the decision.

91. As to the granting of the prayers sought, it is the Respondent’s position that the order of certiorari cannot be issued since the Respondent [Board] in making the decisions in question, was guided by the procurement rules and regulations. To the Respondent, the Applicant has not shown how the Respondent acted ultra vires, excess or without jurisdiction; not demonstrated that the decisions have been marred with the irreparability, impropriety, and irregularity.

92. The Respondent submit that the Applicant, if aggrieved by the Respondent’s decision, ought to have gone for an appeal and not to come for Judicial Review. The Respondent claims that the Applicant is challenging the merit and not the procedure.

93. The Interested Party, in promoting its case filed their written submissions dated 16th October, 2023. In sum, it is submitted that in Judicial Review, an aggrieved party can challenge the fidelity of a process and not the substantive outcome, not only decision of the administrative body. Substantive review, it is contended, is a prerogative of an appellate forum. The cases of Njeru Mirani & 2 others Attorney General & 7 others [2016] eKLR; Humphrey Makokha Nyongesa & another Communications Authority of Kenya, & 2 others [2018] eKLR were relied on.

94. It is contended that in the absence of impropriety, illegality, or irrationality, a Judicial Review court cannot interfere with the exercise of discretion. That the court has limited power to extend the scope of Judicial Review to accommodate an inquiry of the substantive issues. Reliance placed on the cases of Mbogo & another v Shah (1968) EA 93 at 96; Kasereka vs. Gateway Insurance Company Limited [2003] 2 EA 506; and Law Society of Kenya v Kenya Revenue Authority & another [2017] eKLR.

95. In the instant case, the preamble of the Public Procurement and Asset Disposal Act No. 33 of 2015 is to give effect to the provisions of Article 227 of the Constitution. The Act being a creature of the Constitution, elucidates the substantive objectives of transparency, fairness, equity, competitiveness and cost effectiveness in procurement of goods and services. As a result, therefore, a party aggrieved by an infringement of the parent article being Article 227(1) of the Constitution has two avenues under the Constitution to seek redress.

96. That when a party is challenging the manner of making a decision or the fidelity of administrative action, it utilises the avenue of Article 47 of the Constitution; whereas when a party challenges the substantive decision, it utilises the avenue provided for under Article 22 and 23 of the Constitution.

97. To the Interested Party, the Applicant has not met the test established for judicial review. It has not established any illegality, irrationality, or procedural impropriety in the decision by the Respondent [Board]. That impugning the discretion of an administrative body, that has exercised such power judiciously, is not a basis for Judicial Review.

98. It is submitted that the Applicant has failed to demonstrate the grounds of judicial review and is seeking to foster an appeal against the decision of 20th September, 2023 by the Board.

99. Further, the Interested Party submits that being merely dissatisfied with the decision of a public institution is not a ground for Judicial Review, and the Judicial Review Court has a limited scope to accommodate an inquiry into substantive issues. Republic Vs. Kenya Revenue Authority, Ex Parte Yaya Towers Limited [2008] eKLR case is relied upon.

100. That considerations that are relevant to a public authority are of two kinds: mandatory relevant considerations and discretionary relevant considerations. If a decision maker determines a particular consideration as relevant to its decision, it is entitled to attribute it to whatever weight it thinks fit, and the courts will not interfere unless it has acted in an wednesbury- unreasonable manner. This is consistent with the principle that Courts are generally only concerned with the legality of decisions not their merits. Relied on the cases of Nairobi High Court JR. No. 178 of 2018 Mer Security & Communications Systems Ltd/Megason Electronics & Control 1978 Vs. Pparb, Kplc, Orad Ltd/Archelis Kenya Ltd/Glosec Solutions Ltd and Megal Securities Systems Ltd/Firefox Kenya Ltd (jv).

101. The Interested Party submitted that considerations are of two kinds: obligatory considerations being those which the Act expressly or impliedly requires the Tribunal to take into account and permissible considerations being those which can properly be taken into account, but do not have to be. Republic v Public Procurement Administrative Review Board & another Ex parte Tropical Technology Limited [2020] eKLR cited Cooke J's holding in Ashby v. Minister of Immigration was relied on.

102. That in the instant case, the Applicant has not cited a single obligatory consideration that the Board failed to take into account when it arrived at its decision of 20th September, 2023. That the Applicant takes issue with the Board's action of taking the permissible consideration that it was the termination letters of 24th July, 2023 that triggered the re-advertisement of 22nd August, 2023. Without it, there would have been no re-advertisement and so time started running from the date of termination on 24th July, 2023 and not the date of re-advertisement on 22nd August, 2023.

103. To the Interested Party, the Applicant has failed to plead or prove a single relevant consideration that the Board failed to take into account in arriving at its decision of 20th September, 2023 and/or a single irrelevant consideration that it did. That when exercising a discretionary power, a decision-maker may take into account a range of lawful considerations.

104. Notably, that the Board in exercise of its discretionary power was influenced by the fact that termination of the tenders on 24th July, 2023 triggered re-advertisement on 22nd August, 2023 and computation of the 14 days provided for under Section 167(1) of the Act and Regulation 203 could only have begun after 24th July, 2023.

105. In the present case, it is submitted by the Interested Party that, no illegality, irrationality, or procedural impropriety has been established in the manner in which the Board approached and determined the issues before it. That an administrative decision can only be challenged for illegality, irrationality, and procedural impropriety which in this case none is demonstrated.

106. It is contended that the Applicant has not demonstrated that the Review Board took into account even a single irrelevant consideration when it arrived at its decision while disregarding the relevant ones. Thus, it has not been demonstrated how the Review Board's decision was 'manifestly unreasonable'.

107. In the instant suit, it has not been demonstrated how the Review Board acted beyond its authority hence ultra vires when it comprehensively dealt with the issue of when the act or breach complained of arose; and whether the Request for Review was filed within the time prescribed under Section 167 (1) of the Act and Regulation 203 of the Regulations. Therefore, that inviting this Honourable Court to interfere with the Review Board's lawful decision would constitute an unwarranted usurpation of the powers entrusted in the Review Board by Statute.

108. According to the Interested Party, the Applicant seems to be disgruntled by how the Review Board framed the issue of whether the Request for Review was filed within the time prescribed under Section 167 (1) of the Act and Regulation 203 of the Regulations. That they [Applicant] seek that this Honourable Court departs from the finding of the Review Board, and renders a different finding as to when time started running; and, whether the Request for Review No. 62 of 2023 was filed within the Statutory timelines. That this is oblivious of the powers of a Judicial Review court. Reliance was placed on the cases of Republic Kenya Revenue Authority Ex Parte M-Kopa Kenya Limited [2021] eKLR; and Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR.

109. That the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. That the Judicial Review court cannot substitute the decision of the Review Board with its own on the singular contested issue.

110. Judicial Review for Procurement under Section 175(7) of the Act, the court's power is limited to only quashing the decision of the Review Board, not substituting the Board's decision with one of its own as sought by the Applicant.

111. The Interested Party submitted that an Applicant has failed in all the three tests, they have not demonstrated that the decision of the Respondent of 20th September, 2023 is tainted with illegality, irrationality, and procedural impropriety. Thus, that the prayers sought by the Applicant are untenable and unfounded, hence urges this court to dismiss the Notice of Motion dated 27th September, 2023 with costs to them [Interested Party].

Analysis and Determination: Issues for Determination 112. The issues that arises are:A.Whether the Boards finding that the breach of duty occurred on 24th July 2023 is sustainable in law; andB.Whether the orders sought herein are merited.

113. The Respondent/Review Board framed three (3) issues for determination arising from the Request for Review being PPARB Application No. 62 of 2023; one being whether the Board (PPARB) had jurisdiction to hear and determine the instant Request for Review.

114. The Board cited Sections 27, 28, 167, 172, & 173 of the PPAD Act and appreciated that it was a creature of statute and that its jurisdiction flowed from and is circumscribed under Section 28 and 167 of the Act.

115. The Board observed that Applicant in the Request for Review was aggrieved by the decision of the Respondent to re-advertise three (3) of the tenders being:i.Tender No. NHIF/001/2023-2024 for Provision of Insurance Brokerage Services;ii.Tender No. RFP/NHIF/001/2023-2024 for Provision of Consultancy on Actuarial Services; andiii.Tender No. NHIF/002/2023-2024 for Provision for Emergency Road Evacuation Services for National Health Insurance Fund Scheme Members.

116. The Board noted that the Applicant had lodged the Request for Review as a candidate and it contended that the re-advertisement of the said three (3) tenders were malicious and prejudiced the Board’s previous decision rendered in Request for Review No. 43 of 2023.

117. The Board noted that following an advisory by the Director General PPRA to the Interested Party, the Procuring Entity made a decision to terminate the six (6) tenders on 24th July, 2023 and issued letters of notification of its decision to terminate the said tenders dated 24th July, 2023 to various bidders in line with Section 63(4) of the Act.

118. The Respondent noted that the Applicant herein was not among those notified of the termination of the tenders on 24th July, 2023 since it was not a tenderer within the meaning ascribed under the Act.

119. The Board opined that termination letters of 24th July, 2023 triggered the re­ advertisement that the Applicant was complaining of in its Request for Review No. PPARB No. 62 of 2023, and was therefore the 'breach' contemplated under Regulation 203, if at all, that ought to have been challenged by the Applicant or any other aggrieved party (candidate or tenderer) to the procurement proceedings.

120. In Republic v Public Procurement Administrative Review Board & 2 others Ex­ Parte Kemotrade Investment Limited [2018] eKLR the High Court noted that to determine when time starts to run, such determination can only be made upon an examination of the alleged breach and when the aggrieved tenderer had knowledge of the said breach.

121. Section 161(1) The Public Procurement and Assets disposal Act provides that 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 (14) 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.

122. It is this court’s finding that the Respondent [Board] was misguided in arriving at the finding that if there was breach of duty by the Interested Party, it occurred on 24th July, 2023; and it is on this date that time started running and the Applicant ought to have lodged its Request for Review within 14 days from the said date. Section 167(1) of the Act read with Regulation 203 (2)(c) of Regulations, 2020 should be applied from that platform.

123. The Respondent [Board] acted illegally and I so hold when it made a finding that Request for Review was time barred having been raised outside the statutory period of fourteen (14) days of occurrence of alleged breach of duty imposed on the Interested Party [NHIF] by the Act in accordance with Section 167(1) of the Act read with Regulation 203(2)(c)(i) of Regulations 2020; thus ousting the jurisdiction of the Board to hear and determine the same.

124. The Interested Parties’ letters dated 24th July, 2023 communicating the termination of all the six (6) tenders marked the end of the initial ailing tender process.

125. The 22nd August, 2023 advertisement of three (3) tenders by the procuring entity marked the beginning of a fresh procurement process that created the relevant date of reckoning in so far as the 14 days is concerned. This generated a new cause of action.

126. The Board rightly opined that termination letters of 24th July, 2023 triggered the re­ advertisement that the Applicant was complaining of in its Request for Review No. PPARB No. 62 of 2023.

127. I am satisfied that the Applicant’s Request for Review that was filed on 30th August, 2023 was timeously filed accordance with Section 167(1) of the Act as read with Regulation 203(2)(c)(i) of Regulations 2020. The re-advertisement was triggered by the decision to terminate contained in the letter of 24th July, 2023.

128. The Board held, rightly so, that once 14 days lapsed from the 24th July, 2023, the re-advertisement of 22nd August, 2023 amounted to fresh procurement proceedings which any candidate or tenderer could challenge independent of any issue anchored on the previous/related proceedings culminating with the letter of 24th July, 2023. However, the board failed to appreciate that the time for the fresh process began to run on 22nd August 2023 being the re-advertisement date.

129. The Board’s finding that it lacked jurisdiction to hear and determine the Request for Review filed by the Applicant on 30th August, 2023 as it was time barred, having been raised outside the statutory period of 14 days of occurrence of alleged breach of duty imposed on the Respondent by the Act - in accordance with Section 167(1) of the Act read with Regulation 203(2)(c)(i) of Regulations 2020 was an illegality.

130. Given that Section 167 allows the filing of a Request for Review within a period of fourteen (14) days, it is this court’s finding that the Respondent [Board] interpreted Section 167 of the Act erroneously; and hence arrived at an erroneous decision.

131. The decision was unreasonable and untenable since it denied the Applicant the right to be heard. The Respondent [Board] committed an illegality by striking out the Request for Review for want whereas it was filed before lapse of the fourteen (14) days as provided by the law in Section 167 of the Public Procurement and Assets Disposal Act.

132. The procedural lapse and the illegalities were compounded on the 21st September, 2023 by the Interested Party when it proceeded to issue a press advertisement and received bids on 26th September, 2023.

133. Section 175(1) of the Public Procurement and Asset Disposal Act, 2015 provides that: “175. Right to judicial review to procurement(1)A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.”

134. It amounted to a procedural impropriety for the Interested Party to continue with the procurement process even before the lapse of the fourteen (14) days period contemplated under section 175(1) of the Act, for the Applicant to challenge the Respondent’s [Board] decision.

135. It is this court’s finding that these are grave procedural improprieties that had the effect of offending Article 47 and 227 of the constitution. In the case of Pastoli Vs. Kabale District Local Government Council and Others [2008] 2 EA 300 it was held:“In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards......Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

136. It is common knowledge that judicial review jurisdiction is supervisory by nature; it is the channel through which judicial supervision over administrative action is exerted; and, generally speaking, it is meant to cast doubt on any decision that is made in violation of the law. Lord Diplock’s classic dictum in Council of Civil Service Unions versus Minister for the Civil Service (1985) 1 AC 374 provides a useful guide on what an unlawful decision entails. The learned judge spoke of these grounds as follows:“…I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

137. The Applicant has proven its case within the principles set out in the Pastoli Vs. Kabale District Local Government Council and Others [2008] 2 EA 300 and I so hold.

138. The court in Republic v Kenya Revenue Authority Ex Parte M-Kopa Kenya Limited [2021] eKLR at paragraph 83 quoting with approval the case of Republic vs. Kenya Revenue Authority Exparte Yaya Towers Limited [2008] eKLR stated that:‘…Similarly, in Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that the remedy of judicial Review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question.’

Disposition: 139. The Applicant has proven that the decision of the Review Board of 20th September, 2023 is tainted with illegality, irrationality, and procedural impropriety.

Orders:1. The Notion of Motion dated 27th September, 2023 is allowed.2. The Request for Review dated 30th August, 2023, Shemax Consult Limited and the Accounting Officer, National Health Insurance Fund shall be heard and determined within 14 days.3. Costs to the Applicant.

DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 7TH NOVEMBER, 2023. JOHN CHIGITI (SC)JUDGE