https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1214

Sintecnica Engineering S.R.L In Joint Venture With Steam S.R.L v Accounting Officer, Kenya Electricity Generating Company PLC (KENGEN) & 4 others (Civil Appeal E317 of 2026) [2026] KECA 1214 (KLR) (26 June 2026) (Reasons) Neutral citation: [2026] KECA 1214 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E317 of 2026 PO Kiage, J Mohammed & S ole Kantai, JJA June 26, 2026 Between Sintecnica Engineering S.R.L In Joint Venture With Steam S.R.L Appellant and The Accounting Officer, Kenya Electricity Generating Company PLC (KENGEN) 1st Respondent Kenya Electricity Generating Company Plc (Kengen 2nd Respondent Elc Electroconsult S.P.A 3rd Respondent European Investment Bank (Eib) 4th Respondent The Public Procurement Administrative Review Board 5th Respondent (Being an appeal from the judgment of the High Court of Kenya at Milimani - Judicial Review (R.E Aburili, J.) dated 9th April, 2026 in JR Application No. E049 of 2026) Reasons 1.By our judgment delivered on 29th May, 2026, we allowed the appeal herein, set aside the judgment of the High Court (Aburili, J.) dated 9th April 2026, and substituted therefor an order dismissing Judicial Review Application No. E049 of 2026, with each party bearing own costs of the appeal. We, however, reserved our reasons. These are our reasons. 2.The appellant had challenged the decision of Aburili, J. by which the learned Judge ordered as follows;1.THAT an order of certiorari is hereby issued removing and quashing the respondent’s decision dated and delivered on 18th February 2026 in Request for Review Application Number 18 of 2026 on Tender No. KGN-BDD-016-2024.2.That in accordance with section 175(7) of the Public Procurement and Asset Disposal Act each party bear their own costs of these proceedings.3.That this file is closed. 3.Pursuant to leave granted in JR Misc. Application No. E026 of 2026 on 27th February 2026, the 1st and 2nd respondents through a notice of motion of even date, sought the following substantive order;“1.An order of Certiorari to remove and bring to the High Court for purposes of quashing the respondent’s [The Public Procurement Administrative Review Board] decision dated and delivered on 18th February 2026 in Request for Review Application Number 18 of 2026 on Tender No. KGN-BDD-016- 2024.” 4.The application was predicated on the grounds set out on the face of the motion reiterating the grounds contained in the Statutory Statement dated 26th February 2026, and the verifying affidavit of Vincent Nyamweya Mamboleo sworn on 26th February 2026, both lodged with the ex parte application for leave. The 1st and 2nd respondents’ case was that Tender-No-KGN-BDD-016-2024 (subject tender) was advertised in the Dailies of September 24, 2024 in which it was indicated that Kengen was in the process of receiving financing from European Investment Bank (EIB) and intended to use part of the funds thereof for payments towards consultancy services for supervision and management of Olkaria VI Geothermal Power Project. The advert indicated that the services would be procured under the Financier’s “Guide to Procurement for Projects Financed by the EIB” available online on EIB’s Website https://www.eib.org/en/publications/guide-to-procurement.htm. The EIB procurement framework, at clause 3.5 and Annex 2 -International Procurement Procedures – Item 6, incorporated into the tender documents the requirement for financier’s review at every stage/step and its concurrence through issuance of a Letter of No Objection as a mandatory condition precedent to award and contract execution. 5.It was averred that the procuring entity undertook the procurement process and wrote to the Financier (EIB) for a ‘No objection’ but it never received the same hence it decided to terminate the procurement process of awarding the tender to the successful bidder as the project consultancy was conditional upon the financier giving No Objection. The 5th respondent heard Request for Review Application No. 18 of 2026 and in a decision delivered on 18th February 2026, it cancelled and set aside the termination letters and directed the 1st respondent to proceed with the procurement process to its lawful conclusion. The 1st and 2nd respondents contended that in cancelling the termination of the procurement process, the 5th respondent committed an error of law by fundamentally misapprehending the nature and legal effect of the ‘No Objection’ requirement. They claimed that the ‘No Objection’ was not a complaint mechanism but a contractual condition precedent expressly incorporated into the Tender Documents under Clause 3.5 of the EIB Guide and Annex 2, Item 6 thereof, which govern the progression of the procurement process itself. It was averred that the 5th respondent erred in conflating the two distinct legal instruments and in treating the mandatory ‘No Objection’ requirement as a matter falling within the scope of national remedy mechanisms. To the 1st and 2nd respondents, the practical consequence of that error was that the 5th respondent issued orders whose implementation is contractually precluded by the very Tender Documents under which the procurement was conducted. The 1st and 2nd respondents alleged that the 5th respondent committed an error of law by failing to properly adjudicate upon their preliminary objection regarding jurisdiction, specifically, that pursuant to clause 1.8.2 of the EIB Guide to Procurement, the 5th respondent was divested of jurisdiction to entertain complaints against the Financier, such grievances being to the exclusive internal complaints’ architecture of the EIB. Moreover, by proceeding to interrogate, critique and effectively make determinations on the financier’ position and internal procurement requirements, the 5th respondent exceeded its mandate. 6.It was asserted that the 5th respondent misdirected itself in law by failing to give effect to the tender documents and the donor-funded procurement framework which made the EIB ‘No Objection’ a mandatory condition precedent to lawful progression to award/contracting steps and to disbursement of the donor financing component of the tender. The 1st and 2nd respondents claimed that the 5th respondent’s decision dated 18th February 2026, was legally untenable and irrational as it directed the completion of the tender process in total disregard of the mandatory requirement for a ‘No Objection’ letter. The directive in the decision constituted an arbitrary revision of the tender conditions previously established by the procuring entity and the donor. Further, that the decision was tainted by illegality and irrationality in that the 5th respondent exercised its discretion by treating a mandatory donor ‘No Objection’ as an irrelevant or non- binding consideration. By bypassing this contractual prerequisite, the 5th respondent reached a conclusion that no reasonable tribunal, properly directing itself to the law and the facts, could have reached. 7.The 1st and 2nd respondents averred that the 5th respondent exceeded its jurisdiction by usurping the statutory powers of the procuring entity. Its findings were speculative assumptions and lacked evidentiary foundation regarding compliance with sections 44 and 53 of the Public Procurement and Asset Disposal Act, Chapter 421C of the Laws of Kenya (the Act) and regulation 71 of the Public Procurement and Asset Disposal Regulations, 2020. Moreover, it failed to consider the material fact that the tender was expressly contingent upon contemplated donor funding from the EIB. It was asserted that the 5th respondent misdirected itself in law and in fact by conflating the overall project-level co-financing arrangements for the Olkaria VII Geothermal Power Plant with the specific financing structure applicable to the subject Tender. At paragraphs 121 and 126 of its decision, the 5th respondent found that because the broader Olkaria VII project was to be co-financed by multiple parties including EIB, JICA and KenGen itself, the refusal of EIB’s ‘No Objection’ did not establish that funds were unavailable for the specific consultancy contract under the tender. According to the 1st and 2nd respondents, that reasoning was flawed since the subject tender was structured, advertised and conducted exclusively under, and subject to, the EIB financing component and the EIB procurement framework. The tender documents, including the preface and section II, special provisions clause 1.1.2, expressly identify EIB as the intended financier for the contemplated consultancy services contract and made any contractual commitment arising from the tender expressly subject to readiness of disbursements and compliance with applicable EIB financing conditions. Moreover, the existence of JICA financing or KenGen’s own financing for other components of the broader project was legally irrelevant to whether the subject consultancy contract could lawfully proceed in the absence of EIB’s concurrence. The 5th respondent was blamed for failing to draw this distinction, which, to the procuring entity, constituted a material error of law and fact. 8.It was asserted that the 5th respondent’s decision was illegal, irrational and unreasonable and violated the principles of legality and fair administration, as it directed the 1st and 2nd respondents to proceed with a procurement process in a manner that could not lawfully be implemented absent the mandatory donor ‘No Objection’ and associated donor financing, thereby occasioning illegality, unlawful public commitments and audit risk. Further, by directing a public entity to proceed towards contractual commitments absent confirmed donor financing, the decision was contrary to the principles of sound public financial management enshrined in Article 201 of the Constitution. The 5th respondent was accused of committing an error of law by finding that there was insufficient evidence to justify the termination of the subject tender under section 63 of the Act, a finding that is untenable in light of the uncontroverted email from the donor dated 8th January 2026, as cited in paragraph 112 of the impugned decision, declining to issue a letter of ‘No Objection’. 9.It was averred that the 5th respondent improperly applied the statutory requirement in section 63 of the Act by adopting an unduly formalistic approach while discounting the mandatory precondition of donor concurrence that rendered award and contract execution untenable. The 5th respondent was castigated for acting contrary to the principles of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015, by criticising, discounting and effectively overriding the financier’s internal determination as expressed in EIB’s email of 8th January 2026. 10.The 5th respondent was faulted for allegedly committing an error of fact and failing to consider material evidence that was placed before it by stating that it had not had sight of any written report submitted to the Public Procurement Regulatory Authority (PPRA), notifying it of termination of the subject tender in accordance with section 63(2) and of the Act. To the 1st and 2nd respondents, that finding was contrary to the evidence because within the confidential bundle of documents that they submitted to the 5th respondent pursuant to section 67(3)(e) of the Act, they included a portal acknowledgement and confirmation screenshot evidencing the upload of all documentation relating to the procurement proceedings, including the termination notification, on the official Public Procurement Information Portal accessible at https://www.tenders.go.ke/tenders/275952, in compliance with PPRA Circular No. 4/2022 dated 1st July 2022. It was averred that the said circular expressly directs procuring entities to submit all such documentation via the PPRA portal and provides that portal submission constitutes the prescribed mode of compliance. The 1st and 2nd respondents contended that the 5th respondent’s failure to consider that evidence constituted a reviewable error of fact and rendered the finding at paragraph 132 unsustainable. 11.It was asserted that the 5th respondent erred in its assessment of the substantive requirements for termination of procurement proceedings under section 63(1) of the Act, for the reason that while at paragraph 126 it found that the 1st and 2nd respondents had failed to provide sufficient evidence justifying termination, there existed before it an email from the Financier dated 8th January 2026, declining to issue the ‘No Objection,’ and correspondence between parties evidencing the basis for that refusal. It was urged that the said email constituted clear, direct and unambiguous evidence of the unavailability of financing for the subject tender, which goes to the heart of the ground of termination relied upon. In conclusion, the 5th respondent was castigated for allegedly committing an error of fact by finding that no termination notification had been submitted to the Public Procurement Regulatory Authority. 12.The appellant opposed the application vide an affidavit sworn on 3rd March 2026 by Matteo Quaia, the Director and Chief Executive Officer of Steam S.R.L, a party to the Joint Venture between Sintecnica Engineering S.R.L and Steam S.R.L. The appellant contended that the 1st and 2nd respondents had annexed documents that did not form part of Application No. 18 of 2026. The proceedings at the High Court being of a Judicial Review nature brought under section 175 of the Act, the 1st and 2nd respondents could only present before it and rely on evidence that was previously presented before the 5th respondent. The court was thus urged to disregard and expunge from the record the documents appearing at pages 2 to 277 forming part of the bundle of documents of the 1st and 2nd respondents. The appellant termed the 1st and 2nd respondents’ submission that the 5th respondents committed an error of law in allegedly misapprehending the nature and legal effect of the ‘No Objection’ requirement as not only incorrect and misplaced, but outrightly unjustified. 13.The appellant averred that the 5th respondent addressed issues raised in the preliminary objection raised by the 1st and 2nd respondents as the first issue for determination, indicated as “Issue (A)” appearing at page 45 of the decision. It then proceeded to appraise the issue at paragraphs 93, 114, 115, 116, 135 and 139 of the decision and determined that it was clothed with the requisite jurisdiction to hear and determine Request for Review Application No. 18 of 2026. It was argued that contrary to the allegation in paragraphs v and vi of the motion and paragraph 21 of the verifying affidavit, clause 1.8.2 of the EIB Guide to Procurement deals with complaints against the EIB’s Actions. The appellant asserted that the Request for Review did not raise complaints against the EIB’s actions, but against the actions of the 1st and 2nd respondents who, allegedly, irregularly cancelled the tender and intentionally misled the EIB (the Bank) to withhold a ‘No Objection’ with a view to ensuring that the tender is not awarded to the appellant. Further contrary to the averments in paragraph vii of the motion and paragraphs 21 of the verifying affidavit, the 5th respondent did not in any way interrogate, critique or make a determination on the Financier’s position and internal procurement requirements. Instead, it addressed the issues arising from the communication between the 1st and 2nd respondents and the Bank, particularly the apparently misleading and erroneous position taken by the Bank through the email sent by one David Oloo on 8th January, 2026. The appellant asserted that the 5th respondent interrogated the evidence adduced before it and determined that the procedure for termination of the subject tender was lacking per the requirements under section 63 of the Act. 14.It was averred that in as much as the 5th respondent appreciated the effect of the grant of a ‘No Objection’, the process itself was flawed as evidenced in the reasons given in the email communicating the refusal to grant the ‘No Objection’. The appellant claimed that through a consistent pattern of conduct demonstrating manifest bad faith, the 1st and 2nd respondents had been unequivocally opposed to its success in the subject procurement, and their actions transcended mere procedural irregularity and revealed a calculated design to preclude it from winning the bid. It was alleged that such conduct was illustrated by their seemingly deliberate and misleading communications to the Bank, which were crafted in order to ensure withholding of the critical ‘No Objection’ to the award in favour of the appellant. The appellant pointed out that the 5th respondent addressed the issue extensively at paragraphs 109, and 112 to 116 of its decision and arrived at the conclusion that the reasons given for the refusal to grant a ‘No Objection’ were vague, insufficient and not justifiable. It was asserted that the impugned decision cannot be said to be legally untenable or irrational since it was meant to ensure that the 1st and 2nd respondents regularised and completed the procurement process in accordance with the law; the previous decision of the 5th respondent in Application No. 62 of 2025, and the tender documents. The appellant maintained that the impugned decision was legal and rational, and that the 5th respondent did not at all disregard the import of the mandatory ‘No Objection’. 15.It was averred that the 5th respondent did not usurp the statutory powers of the procuring entity since the 1st and 2nd respondents had failed to meet the threshold for termination of the tender on account of lack of funding. Further, the 1st and 2nd respondents could not claim that the tender was cancelled because of lack of budgetary provisions and in the same breath claim that they were not in violation of regulation 71 of the Public Procurement and Asset Disposal Regulations, which requires procurement plans and budgets to be approved. It was argued that in their letter dated 20th January 2026, the 1st and 2nd respondents indicated that they were cancelling the tender to conduct fresh procurement proceedings and on that ground the appellant believes that the termination of procurement proceedings was not occasioned by reasons listed under section 63 of the Act. Further, the appellant denied the allegation that the 5th respondent conflated the overall project co-financing arrangements with the specific financing structure applicable to the subject tender. It affirmed the 5th respondent’s observation that the Bank’s response was in bad taste since while the reasons provided in the email by a Mr. David Oloo for questioning the 5th respondent’s decision was the claim that it acted as a separate evaluation committee, in the Request for Review proceedings, the 1st and 2nd respondents maintained that the reason for the cancellation of the subject tender was lack of financing from the Bank. The appellant asserted that when it comes to termination of procurement proceedings, the applicable procedure is as set out under section 63 of the Act. The section gives the specific reasons for termination and spells out the procedure that must be followed in the termination. It was submitted that the reasons given by 1st and 2nd respondents for termination of the subject tender were contradictory and unjustifiable; due procedure was not followed and no evidence was produced indicating that the PPRA was notified of the termination of the subject tender, as required by section 63(2) of the Act. It was averred that while during the hearing of Application No. 18 of 2026 the 1st and 2nd respondents were given an opportunity to address the issue of whether they submitted a report on termination, they deliberately failed to do so. The appellant concluded by urging that the application was an abuse of the court process and should be dismissed with costs to it. 16.The 5th respondent responded to the motion vide an affidavit sworn on 4th March 2026 by Philemon Kiprop, its secretary. He contended that the challenge by the 1st and 2nd respondents to its decision dated 18th February 2026, rendered in Application No. 18 of 2026, was an appeal against the decision but disguised as a judicial review application. To that extent, we were urged to disallow the prayers sought for want of jurisdiction. The 5th respondent proceeded to narrate the background to the application that was made before it by the appellant, being Request for Review No. 18 of 2026. It was averred that in the said application, the appellant sought various orders and on 18th February 2026, the 5th respondent made the following final orders;a.The Request for Review filed on 28th January 2026 with respect to Tender No. KGN-BDD-016-2024 for consulting services for Olkaria VII Geothermal Power Project be and is hereby allowed.b.The Letters communicating Termination of Procurement Proceedings with respect to Tender No. KGN-BDD-016-2024 for Consulting Services for Olkaria VII Geothermal Power Project issued to the Applicant and all the other bidders in the subject tender, be and are hereby cancelled and set aside.c.The 1st respondent is hereby directed to proceed with the procurement process with respect to Tender No. KGN-BDD- 016-2024 for Consulting Services for Olkaria VII Geothermal Power Project to its lawful conclusion.d.Given that the procurement process is not complete, each party shall bear its own costs in the Request for Review. 17.The 5th respondent averred that in reaching its decision it considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to section 67(3)(e) of the Act and found that the following issues called for determination; whether it had jurisdiction to hear and determine the Request for Review; whether the respondents in determining the subject tender complied with section 63 of the Act; and, what orders to grant in the circumstances. 18.On whether it had jurisdiction to hear and determine the Request for Review No. 18 of 2026, it considered the issue of whether the termination of the procurement proceedings in the subject tender was valid having taken cognisance of section 63 of the Act which governs termination of procurement proceedings as well as section 167(4)(b) of the Act which provides that the Board’s jurisdiction is divested where termination of procurement proceedings has been carried out in line with section 63 of the Act. Further, the 5th respondent took note of authorities from the High Court which dictate that it has a duty to question whether a decision by a procuring entity terminating a tender has met the threshold of section 63 of the Act, since the mere existence of a letter of termination notification does not oust its jurisdiction. The 5th respondent proceeded to interrogate the termination of the subject tender noting that for termination of procurement proceedings to pass legal muster, a procuring entity must demonstrate compliance with both the substantive and procedural requirements under section 63. 19.On the substantive requirements, it reviewed the letter dated 15th January 2026, addressed to the appellant regarding the subject tender’s cancellation and noted that the 1st and 2nd respondents did not make reference to the provisions of section 63. Instead, it indicated that cancellation of the subject tender was due to the decline by the Project Financier to grant a letter of No Objection, without which they contended that there will be no finances to honour payment obligation for a contract resulting from the subject tender. The 5th respondent also noted the appellant’s request for clarification from both the 1st and 2nd respondents and the Bank with regard to the subject tender and their responses. From the correspondence, it was clear to the 5th respondent that while the 1st and 2nd respondents attributed the cancellation of the subject tender to the non-issuance of a letter of No objection by the Bank, the Bank indicated that it received communication pertaining to cancellation of the subject tender from the 1st and 2nd respondents and as such, in accordance to its procedures, such cancellation closed all related requests for clarification or challenges. 20.It was averred that in its review of the subject tender, the 5th respondent observed that in compliance with its orders of 26th September 2025, which orders were upheld by both the High Court and Court of Appeal, the 1st and 2nd respondents’ Evaluation Committee re- evaluated the tender and recommended award of the tender to the appellant. However, the Bank made a decision not to issue the requested letter of ‘No Objection’ and that decision was attributed to Non-adherence of the decisions rendered by the 5th respondent to the procurement procedures outlined in the tender dossier; the 5th respondent’s functioning as a separate Evaluation Committee, assigning scores and conducting evaluation based on local regulations; the 5th respondent’s approach which supposedly compromised the reliability and compliance of the overall process with the Bank’s general principles of procurement. The 5th respondent stated that it took great issue with the foregoing averments, being the reasons for non-issuance of the letter of ‘No Objection’, as shown at paragraph 114 of its decision. It contended that while recognising the vital role played by the Bank in delivering the Government of Kenya’s ambitious transformational programmes, it deemed it prudent to point out that where national and local laws have been embraced by the development partners in resolving conflict, then the same ought to be complied with. 21.Referring to sections 44 and 53 of the Act, and noting the restriction against commencing a procurement process without ascertaining whether the goods or works are budgeted for, as well as the requirement for the head of the user department to initiate the procurement process through requisition in line with the procuring entity’s approved procurement plan, the 5th respondent found that there was a strong rebuttable presumption that the subject tender was within the procuring entity’s approved budget and procurement plan. Consequently, the 1st and 2nd respondents were found to have failed to fulfil the substantive requirements for the termination of the procurement proceedings, as required by section 63. Moreover, they were found to have failed to fulfil the procedural requirements under the same provision, since the termination letter that they issued to the appellant did not point out the specific pre-condition listed under section 63 which led to the cancellation. There was also no written report submitted to the PPRA notifying it of the termination and the reasons thereof. The 5th respondent explained that when it established that the 1st and 2nd respondents had failed to satisfy both the substantive and procedural statutory requirements of termination of procurement proceedings, it held that the purported termination of the subject tender’s procurement proceedings was unlawful and illegal and its jurisdiction to hear and determine the Request for Review No. 18 of 2026 had not been ousted by din’t of section 167(4)(b) of the Act. It was asserted that the 5th respondent’s decision of 18th February 2026 did not overreach its mandate and jurisdiction and neither did it misapprehend the nature and legal effect of the ‘No Objection’ requirement, as alleged by the 1st and 2nd respondents. The 1st and 2nd respondents were also castigated for failing to demonstrate any elements of illegality, error of law, unreasonableness, procedural unfairness or abuse of process in the manner in which the 5th respondent arrived at its decision. In conclusion the court was urged to dismiss the application by the 1st and 2nd respondents with costs. The court was, however, urged that if it was minded to find the application merited, then in accordance with section 175(7) of the Act, it should not allow the prayer on costs. 22.Vide a further affidavit sworn on 4th March 2026, by Vincent Nyamweya Mamboleo, the 2nd respondent’s General Manager, Supply Chain, a rejoinder was made to the responses by the appellant and the 5th respondent. The 1st and 2nd respondents maintained that among the bundle of confidential documents that they furnished the 5th respondent was a screenshot of the Public Procurement Information Portal evidencing submission of the Termination notification/report to the PPRA. Further the Bank’s procurement guidelines were annexed to their replying affidavit dated 1st February 2026 filed before the 5th respondent and appeared at pages 755 to 858 of their bundle in the Judicial Review application. It was asserted that none of the parties herein, including the 1st and 2nd respondents, could dictate the issuance or non-issuance of the Letter of No Objection by the Bank. Moreover, the effect of the impugned decision was to disregard and/or rewrite the tender requirements by ignoring the mandatory requirement for a Letter of No Objection. The 1st and 2nd respondents maintained that their letter notifying the appellant of the termination of the tender as read with the Bank’s correspondence and other supporting documentation sufficiently disclosed the basis for the termination. It was asserted that even if the impugned decision was to be treated as valid, the procurement process cannot still lawfully proceed in the absence of the Letter of No Objection, the result being that it creates a practical and legal stalemate and exposes the 1st and 2nd respondents to increased risk, liability and potential unlawful obligations. Further, it was emphasised that the 1st and 2nd respondents duly complied with provisions of section 63 of the Act. The 1st and 2nd contended that vide its replying affidavit, the 5th respondent confirmed that it ventured into matters reserved for the Bank/Financier by interrogating the procedure, reasons and basis upon which the Bank declined to issue the Letter of No Objection. In conclusion, they reiterated that the impugned decision was unreasonable, legally untenable and incapable of implementation. 23.As stated above, the learned judge allowed the application by the 1st and 2nd respondents with the result that the 5th respondent’s decision dated and delivered on 18th February 2026 in Request for Review Application Number 18 of 2026 on Tender No. KGN-BDD-016- 2024 was quashed. Aggrieved by that decision, the appellant has preferred this appeal by which it contends that the learned Judge erred by;1.Declining to expunge new evidence introduced by the 1st and 2nd respondents at the High Court.2.Failing to appreciate that the Judicial Review application was an appeal disguised as a Judicial Review.3.Ignoring the Bank’s letter dated 22nd January 2026 which informed that the tender had been cancelled hence there was no need to give a No Objection.4.Finding that the 1st and 2nd respondents acted within the parameters of section 63 of the Public Procurement and Asset Disposal Act.5.Failing to take into consideration the appellant’s evidence and written submissions.6.Wrongly interpreting the 5th respondent’s impugned decision.7.Descending into the arena of the dispute by introducing new evidence not presented before the 5th respondent and the High Court.8.Misidentifying the main issue for determination as the 1st and 2nd respondent’s failure to cite section 63 during the termination of the procurement process.In the end the appellant prays that the appeal be allowed by setting aside the impugned judgment and reinstating the decision of the 5th respondent dated 18th February 2026, in Application No. 18 of 2026. The appellant also prays for costs of this appeal and those of the Judicial Review proceedings at the High Court.The 1st and 2nd respondents filed a cross-appeal on grounds that the learned Judge erred by;1.Holding that the 5th respondent had jurisdiction to interrogate and pronounce itself upon complaints against the European Investment Bank and/or its internal procurement requirements.2.Failing to find that the 5th respondent acted without jurisdiction by proceeding to interrogate and determine the propriety of the Bank’s ‘No Objection’ position and due diligence decision. 24.The 1st and 2nd respondents pray that the appeal be dismissed with costs to them. Further, that the cross-appeal be allowed with costs, and all other aspects of the High Court order of certiorari quashing the 5th respondent’s decision be upheld. 25.At the plenary hearing of the appeal, learned counsel Mr. Omiti, Ms. Lagat and Ms. Karumi appeared for the appellant, Messrs Mogaka and Ambehi for the 1st and 2nd respondents and Mr. Wanjohi for the 5th respondent. There was no appearance for the 3rd and 4th respondents. Parties had filed written submissions and authorities prior, which were highlighted by counsel. 26.Counsel for the appellant deduced two (2) issues for determination namely, whether the 5th respondent had the requisite jurisdiction to hear and determine the Request for Review No. 18 of 2026; and, whether this Court should grant the orders sought in the memorandum of appeal dated 15th April 2026. 27.On the question of jurisdiction, Mr. Omiti affirmed the Court’s finding that the 5th respondent had the requisite jurisdiction to hear and determine the Request for Review Application No. 18 of 2026. He submitted that the 5th respondent being a creature of statute pursuant to section 27(1) of the Act, the challenge on the decision to terminate the procurement proceedings by the 1st and 2nd respondents was an issue that squarely fell within its powers. Counsel denied the allegation that the appellant’s grievances were against the Bank’s actions. He urged us to find that the 5th respondent had the requisite jurisdiction to entertain and determine Application No. 18 of 2026 and consequently, dismiss the cross-appeal with costs to the appellant. 28.On whether this Court can grant the orders sought in the memorandum of appeal, counsel challenged the learned Judge’s finding that the termination of the subject tender was done in accordance with section 63 of the Act. The learned Judge was faulted for failing to appreciate that no evidence was placed before the 5th respondent demonstrating that the 1st and 2nd respondents complied with the procedure set out for termination of a tender. Reliance was placed on the decision in REPUBLIC Vs. PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD & 2 OTHERS [2019] KEHC 9688 (KLR) for the argument that the procurement process including cancellation of the tender process must strictly conform to the constitutional dictates of transparency, openness, accountability, fairness and the rule of law. It was argued that the decision to terminate the procurement process as communicated to the appellants failed to offer any justifiable reasons for termination. Further, in their letter dated 20th January 2026 to the Bank, the 1st and 2nd respondents indicated that they would re-start the tendering process and therefore it cannot be that there was inadequate budgetary provision. The holding in REPUBLIC Vs. PUBLICPROCUREMENTADMINISTRATIVEREVIEWBOARD EX PARTE NAIROBI CITY & SEWERAGE COMPANY;WEBTRIBELIMITEDT/AJAMBOPAYLIMITED(INTERESTEDPARTY) [2019] KEHC 4757 (KLR) was cited for the submission that the reasons for termination must provide sufficient information to bring the grounds within the provisions of the law. Counsel faulted the learned Judge for finding that the recital of the statutory language, specifically inadequate budgetary provision, was sufficient and justifiable in the present case. The appellants were of the considered view that from the evidence placed on record in Application No. 18 of 2026, funding for the development of Olkaria VII was to be obtained from various stakeholders. Counsel urged that the learned Judge and the 5th respondent were enjoined to consider whether both the substantive and procedural requirements for termination as outlined in section 63 of the Act were met. To buttress this submission, the decision in REPUBLIC Vs. PUBLIC PROCUREMENT ADMINISTRATIVE REVIEWBOARD & ANOTHER EX-PARTE KENYA VETERINARY VACCINESPRODUCTION INSTITUTE[2018] eKLR was cited. 29.The learned Judge was castigated for finding that the procedure set out for termination of procurement proceedings had been duly followed, despite lack of evidence demonstrative of the same. She was faulted for ignoring the fact that during the hearing before the 5th respondent, the Board members inquired about the written report which ought to be submitted to the PPRA within 14 days but counsel for the 1st and 2nd respondents could not point the Board to any such report. It was urged that it was only at the High Court that the 1st and 2nd respondents presented a link which they alleged was evidence of submission of the report. Mr. Omiti contended that the learned Judge ought to have considered both whether the report was actually available at the time and whether it was submitted within the prescribed timelines. He faulted the learned Judge for, allegedly, considering evidence that had not been placed before the 5th respondent. Counsel referred to the decisions in MIGORE Vs. SOUTH NYANZA SUGAR CO.LTD[2018] KEHC 5465 (KLR) and RAILA AMOLO ODINGAAND ANOTHERVs.IEBC&2OTHERS [2017] eKLR for the submission that parties are bound by their pleadings and any evidence that tends to be at variance with the pleadings must be disregarded. In conclusion, counsel beseeched us to allow the appeal with costs as prayed in the memorandum of appeal. He also urged us to dismiss the cross-appeal with costs. 30.Next to submit in support of the appeal was Mr. Wanjohi for the 5th respondent. He entirely relied on the written submissions which had been filed earlier as well as its replying affidavit and submissions lodged at the High Court. Counsel delineates two (2) issues for consideration by this Court namely, whether the 5th respondent had jurisdiction to hear and determine the Request for Review Application No. 18 of 2026 under the Act and, whether the appeal should be allowed. On the question of jurisdiction, it is submitted that pursuant to section 28 of the Act, the 5th respondent had jurisdiction to hear and determine the request for review. The section mandates it to review, hear and determine tendering and asset disposal disputes, as well as to perform any other function conferred on it by the Act, the Regulations or any other written law. Reliance is placed on the landmark case of THE OWNERSOFMOTORVESSEL“LILLIANS”Vs.CALTEXOILKENYA LIMITED[1989] KLR 1 and the Supreme Court decision in SAMUELKAMAUMACHARIA&ANOTHERVs.KENYACOMMERCIALBANK LIMITED & 2 OTHERS[2012] eKLR for the submission that jurisdiction is everything and is the starting point for the exercise of any judicial authority, in this case, the exercise of authority by a quasi- judicial body like the 5th respondent. 31.Reference is made to the decisions in REPUBLIC Vs. PUBLICPROCUREMENT REGULATORY AUTHORITY & ANOTHER; AUTOTERMINAL JAPAN LIMITED (EX PARTE APPLICANT); AUDITOR GENERAL & ANOTHER (INTERESTED PARTIES)(JUDICIAL REVIEW 55 OF 2022) [2022] KEHC 10782 (KLR) and REPUBLIC Vs. PUBLICPROCUREMENT ADMINISTRATIVE REVIEW BOARD; SHENZENINSTRUMENT CO. LIMITED & ANOTHER (INTERESTED PARTY) EXPARTE KENYA POWER AND LIGHTING COMPANY LIMITED[2019]eKLR, for the argument that courts should not interfere with the exercise of the statutory mandate of specialised bodies but only play a supervisory role. 32.On whether the appeal should be allowed, it is submitted that judicial review is not concerned with the merits of a decision but with the legality of the decision-making process. To buttress this argument, the decision in REPUBLIC Vs. PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD & ANOTHER EX PARTE GIBBAFRICA LTD & ANOTHER[2012] KEHC 381 (KLR) is relied on. 33.Counsel submits that the 5th respondent strictly complied with the procedure set out under the Act in receiving and determining the request for review. It also complied with Article 227 of the Constitution which requires that public procurement be conducted in a manner that is fair, equitable, transparent, competitive and cost-effective. To this end it is urged that the 5th respondent’s action was not only lawful but constitutionally underpinned. Counsel contended that the 1st and 2nd respondents failed to establish any of the recognised grounds of judicial review and, therefore, the proceedings before the High Court were unwarranted and amounted to an impermissible attempt to convert judicial review into an appeal. Reference is made to the decision in KENYA PIPELINE COMPANY LIMITED Vs. HYOSUNG EBARACOMPANY LIMITED & 2 OTHERS[2012] KECA 104 (KLR) for the assertion that specialised bodies created under the Public Procurement and Asset Disposal Act should be accorded appropriate deference in matters falling within their statutory competence. In the end counsel implored this Court to allow the appeal, set aside the impugned High Court decision and dismiss the cross-appeal with costs. 34.In opposition to the appeal and in support of the cross-appeal, counsel for the 1st and 2nd respondents set out five(5) questions for determination by this Court namely, whether the appellants have shown any basis upon which this Court may interfere with the High Court’s exercise of judicial review discretion; whether the learned Judge correctly held that the actual tender documents and the incorporated EIB Guide made Financier ‘No Objection’ a mandatory condition precedent to lawful progression to award and contract execution; whether the learned Judge correctly held that once EIB withheld ‘No Objection’, the termination fell within section 63 and the Board’s contrary directive was irrational, unlawful and incapable of implementation; whether the complaints concerning the evidentiary record, the PPRA portal and the allegation of the learned Judge “simply googling” furnish any valid basis to disturb the judgment; and, whether the judgment should be varied on the limited jurisdictional point raised by the cross-appeal. 35.On whether the appellant had shown any basis upon which this Court may interfere with the High Court’s exercise of judicial review discretion, counsel cited SHARPCUT DESIGNERS LTD Vs. PUBLICPROCUREMENT ADMINISTRATIVE REVIEW BOARD & 2 OTHERS;PAYLESS CAR HIRE AND TOURS LTD (INTERESTED PARTY)[2025] KECA 1132 (KLR) for the principle that this Court will not interfere with the trial court’s exercise of discretion unless the Judge misdirected himself or herself in law, considered matters that ought not to have been considered, failed to consider matters that ought to have been considered, or reached a plainly wrong decision. 36.Mr. Mogaka argued that the learned Judge did not undertake a merit review but rather a classic judicial review inquiry into legality, rationality, relevant considerations, jurisdiction and implementability. To support that contention, he referred to the question posed by the learned Judge at paragraph 185 of the impugned judgment, that is, whether once the tender documents and the applicable EIB framework made the Bank’s no-objection mandatory before award and contracting, the 5th respondent could still direct the 1st and 2nd respondents to proceed to the lawful conclusion of the procurement as though the mandatory step had been satisfied. On whether the learned Judge correctly held that the actual tender documents and the incorporated EIB Guide made Financier ‘No Objection’ a mandatory condition precedent to the award and contract execution, counsel referred to various clauses of the tender document including, the preface to Part 1 and Part 2 at pages 39 and 42 of the record, which provides that KenGen and EIB had agreed to use the EIB procurement guidelines and to adapt the standard bidding documents for the Olkaria VII procurement process; General Provision clause 1.2.3 which placed the process under EIB monitoring and no-objection and provided that EIB’s approval and no-objection continued to individual steps during the procurement process; and, Special Provision clause 1.1.2 which provided that ‘any contractual commitment related to this tender procedure is subject to the readiness of disbursement of funds for this assignment’. It was further submitted that the EIB Guide provided that the Bank could review its position in light of new information that came to its knowledge after it had given its opinion on a specific aspect of the process. Counsel asserted that according to the foregoing cited clauses, it was evident that the learned Judge enforced the instructions embedded in the tender documents. To anchor this argument, the decision in SHARPCUT DESIGNERS LTD Vs. PUBLIC PROCUREMENTADMINISTRATIVE REVIEW BOARD & 2 OTHERS; PAYLESSCAR HIREANDTOURSLTD(INTERESTEDPARTY) (supra) was cited for the submission that every tender is determined within its own provisions; tendering entities are entitled to design their own terms and conditions; and parties are bound by clear mandatory requirements. 37.Next, Mr. Mogaka addressed the question of whether the learned Judge correctly held that once the Bank withheld no objection, the termination fell within section 63 and the 5th respondent’s contrary directive was irrational, unlawful and incapable of implementation. Counsel urged that this Court should specially note paragraph 243 of the impugned judgment, where the High Court held that the no- objection clause was a condition precedent at every stage of the procurement process and binding on the procuring entity and even the tenderers. To him, that was the central answer to the 5th respondent’s approach and remains the central answer to this appeal. Mr. Mogaka submitted that section 63(1)(b) of the Act permits termination prior to notification of award where there is inadequate budgetary provision. 38.According to him, the High Court at paragraphs 207, 208, 231, 239 and 240 of the impugned judgment correctly held that the refusal of no- objection created precisely that problem. Counsel affirmed the learned Judge’s rejection of the appellant’s reliance on the fact that the wider Olkaria VII project had other financiers such as JICA and KenGen’s own contribution. 39.It was asserted that the 5th respondent’s directive was incapable of implementation. The Supreme Court decision in MITU-BELLWELFARE SOCIETY Vs. KENYA AIRPORTS AUTHORITY & 2OTHERS;KENYA NATIONAL COMMISSION ON HUMAN RIGHTS & ANOTHER(Amici Curiae) [2021] KESC 34 (KLR) was cited for the submission that court orders must be specific, effective and realistic and must avoid judicial overreach. Counsel contended that the 5th respondent’s decision did the opposite of the Apex Court’s holding by compelling movement toward contract award in the face of an unsatisfied financier precondition and absent confirmed disbursement. The holding in KENYA NATIONAL EXAMINATION COUNCIL Vs.REPUBLIC EX PARTE GEOFFREY GATHENJI NJOROGE & 9 OTHERS [1997] eKLR was cited for the principle that courts and statutory tribunals do not act in vain nor issue orders that are incapable of enforcement. 40.On the fourth issue, it was contended that the appellant’s allegations that the learned Judge relied on documents not before the 5th respondent, failed to expunge pages from the leave bundle, and/or impermissibly looked up material online, do not justify appellate interference. Counsel premised that argument on grounds that the documents said to be new were not new in any material sense. He referred to paragraphs 187 and 188 of the impugned judgment where the learned Judge identified materials that informed the dispositive issue being the tender clauses, the EIB Guide, the professional opinion, the 7th January 2026 request for no-objection, the 8th January 2026 refusal email, the 15th January 2026 termination letter, the screenshot evidencing portal submission and the impugned decision by the 5th respondent. The learned Judge held that those documents were either before the 5th respondent or expressly referred to in the impugned decision. Further, it was asserted that even if the Court were to disregard every aspect of the judgment dealing with the PPRA portal, the appeal should still fail on the mandatory no-objection issue. In addition, counsel referred to a letter dated 19th January 2026 which formed part of the documentary evidence before the 5th respondent, where the procuring entity informed the appellant that it would ensure full compliance with the statutory publication requirement of publishing the notification of cancellation of the subject tender on the Public Procurement Information Portal, within the prescribed timelines. Mr. Mogaka pointed out that in its replying affidavit at the High Court, the 5th respondent did not refute the averments made on behalf of the 1st and 2nd respondents, at paragraphs 13 and 15 of the verifying affidavit of Vincent Nyamweya Mamboleo. The averments were to the effect that the 1st and 2nd respondents duly uploaded all documentation relating to the procurement proceedings including the procurement plan, the notification of termination to tenderers and the professional opinion containing the Tender Cancellation Report, on the official public procurement information portal (PPIP) accessible to the public https:/.www.tenders.go.ke/tenders/275952, and that the portal acknowledgement formed part of its confidential bundle of documents that was furnished to the 5th respondent. It was urged that a fact asserted in an affidavit and not controverted is deemed admitted. On the cross-appeal, Mr. Mogaka contested the learned Judge’s finding at paragraphs 171 to 174 of the judgment that the 5th respondent was vested with jurisdiction to entertain the request for review. He contended that the correct legal position was that the 5th respondent could examine whether the 1st and 2nd respondents had complied with the Act in terminating the procurement, but not interrogate, criticize or review the Financier’s refusal of ‘No Objection' and its internal due diligence under the incorporated EIB framework. It was urged that under sections 167(1) and 173 of the Act, the 5th respondent’s powers are confined to procurement proceedings before it and do not include supervision of a financier’s independent contractual due diligence or to pronounce upon whether the financier should have granted no-objection. Counsel submitted that under the incorporated EIB Guide, Clause 1.8 and Annex 7 separate complaints against promoter action from complaints against Bank action. Complaints against promoter action are to be addressed to the promoter and/or national review bodies while complaints against Bank action are to be addressed through the Bank’s own complaints architecture. Reliance was placed on this Court’s decision in AMAZON TRANSPORTERS LTD Vs. PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD & 2 OTHERS; JENNYGOENTERPRISES LTD (INTERESTED PARTY)[2025] KECA 984 (KLR) where the Court approved the proposition that the 5th respondent had no power to supervise the Public Procurement Regulatory Authority’s exercise of the investigative function. In conclusion, counsel urged us to dismiss the appeal with costs to the 1st and 2nd respondents and, allow the cross-appeal with costs. 41.In reply to the foregoing submissions by counsel for the 1st and 2nd respondents, and while addressing the issue as to whether the report of the termination of the subject tenders was furnished to the PPRA within 14 days, Mr. Omiti pointed out the findings of the 5th respondent at pages 1080 to 1081 of the record, where it observed that it had not sighted any such report. The 5th respondent further noted that although counsel for the respondents had indicated that the said report could be accessed from the Public Procurement Information Portal (PPIP), the respondents ought to have at least produced a screenshot or printout of the filed report as evidence. Mr. Omiti urged that the screenshot that the 1st and 2nd respondents referred to at page 304 of the record had been introduced at the High Court for the first time. He further reiterated that the Bank did not give reasons for their failure to give a letter of ‘No Objection’. When inquired whether it was open for the 5th respondent to interrogate whatever reasons the Bank had for not giving a letter of ‘No Objection’, Counsel asserted that the Bank actually gave reasons for their failure to give a ‘No Objection’ but the reasons do not fall under section 63. 42.From the respective parties’ positions as captured at length in this judgment, we distill two (2) issues for determination namely; whether the 5th respondent had the requisite jurisdiction to hear and determine the Request for Review No. 18 of 2026 and, simpliciter whether the appeal should be allowed. 43.On jurisdiction, the 1st and 2nd respondents contest the learned Judge’s finding that the 5th respondent was vested with jurisdiction to entertain the request for review. They contend that the correct legal position should have been that the 5th respondent could examine whether they complied with the Act in terminating the procurement proceedings, but they could not interrogate, criticize or review the Financier’s refusal of ‘No Objection'. We note that while evaluating this issue the learned Judge observed that the 5th respondent’s discussion of the financier’s refusal to give a ‘No Objection’ was in the context of determining whether the termination of the tender was in accordance with section 63 of the Act. We agree with that reasoning, bearing in mind that it would have been an impossibility to determine whether the termination of the subject tender was in accordance with the law, without discussing the refusal to issue a No Objection letter, an aspect that is the crux of the entire dispute herein. We hold the view that the 5th respondent was clothed with the requisite jurisdiction to determine the request for review and it properly exercised that jurisdiction. In the result, we find no difficulty holding that the cross-appeal is found without substance. 44.On whether this appeal is merited, it is argued that specialized bodies created under the Public Procurement and Asset Disposal Act should be accorded appropriate deference in matters falling within their statutory competence, and that courts should not interfere with the exercise their statutory mandate and only play a supervisory role. In this respect, counsel for the 5th respondent cited REPUBLIC Vs.PUBLIC PROCUREMENT REGULATORY AUTHORITY & ANOTHER;AUTO TERMINAL JAPAN LIMITED (EXPARTE APPLICANT);AUDITOR GENERAL & ANOTHER (INTERESTED PARTIES) (supra) where the High Court observed as follows;53.It is trite that specialised bodies should not be interfered with in exercise of statutory mandate and the court will only exercise its supervisory role over them if the decision or administrative action is tainted with illegality, irrationality or procedural impropriety.[…]54.The court will not interfere with the decision or administrative action where the proceedings are regular and the body making it is seized of the requisite jurisdiction and an order of certiorari will not issue on the ground that its decision is considered to be wrong either because it misconceived a point of law or misconstrued a statute or that its decision is wrong in matters of fact or that it misdirects itself in some matter.”[…]88.It is trite law that the court’s role in judicial review remains strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. The legal principle now entrenched in precedent is that in circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision or if the decision is within the ‘area of decisional freedom’ of the decision-maker, it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently.” 45.In REPUBLICVs.PUBLICPROCUREMENTADMINISTRATIVEREVIEWBOARD; SHENZHEN INSTRUMENT CO. LIMITED & ANOTHER(INTERESTED PARTY) EX PARTE KENYA POWER ANDLIGHTING COMPANY LIMITED (supra) the court expressed itself thus;62.A justification sometimes offered by courts on review for leaving matters of facts/evidence to tribunals is the advantage that decisionmakers have over the supervising courts in relation to evaluating the evidence and assessing credibility. But if a court on review regards a tribunal’s fact-finding methodology is deficient, the court will be disposed to intervene. None, the less, courts are reluctant to become involved in factual and evidentiary controversies. This is consistent with the proper limits on Judicial Review that requires courts not to intrude upon the merits of the decision.63.Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature and hence not contravening the will of Parliament, then a court will not interfere with the decision.” 46.Further, in KENYA PIPELINE COMPANY LIMITED Vs.HYOSUNG EBARA COMPANY LIMITED & 2 OTHERS (supra) this Court held as follows;“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.” 47.We respectfully concur with that enunciation of the law. 48.It is also the appellant’s case that judicial review is not concerned with the merits of a decision, as was the case herein, but with the legality of the decision-making process. The appellant contends that the learned Judge was enjoined to consider whether both the substantive and procedural requirements for termination as outlined in section 63 of the Act were met. The 1st and 2nd respondents however contest the position taken by the appellant and the 5th respondent and urge that the learned Judge did not undertake a merit review but rather a classic judicial review inquiry into legality, rationality, relevant considerations, jurisdiction and implementability. The question as to whether the judicial review application before the High Court was a veiled appeal in terms of inviting the court to interrogate the merits of the 5th respondent’s decision was an issue that was raised by the appellant and the 5th respondent before the learned Judge. We observe that in evaluating the issue, the learned Judge noted, and rightly so, that despite the expanded constitutional and statutory foundation, the essential character of judicial review remains unchanged, and that judicial review is concerned with the legality of the decision-making process as opposed to the merits of the decision itself. The learned Judge, however, proceeded to reason as follows;179.In the present case, the Applicants’ complaint is not framed as a mere disagreement with the outcome reached by the Review Board. Rather, the Applicants assert that the Review Board acted outside the scope of its statutory mandate by determining, according to ex parte applicants, the lawfulness of the refusal to give no objection to the reevaluated process, that the Review Board acted irrationally in directing the ex parte applicants to complete the procurement process yet the process was conditional upon the 3rd interested party giving no objection letter at every stage of the process and that the Review Board ‘s decision is therefore tainted with illegality and irrationality, and thus falls short of the standards of lawfulness and reasonableness required under Article 47 and the Fair Administrative Action Act.180.These grounds fall squarely within the recognised realm of judicial review. A claim of ultra vires conduct raises a jurisdictional issue; an allegation of illegality concerns whether the decision-maker properly directed itself in law; and a claim of irrationality invites this Court to consider whether the impugned decision meets the threshold of reasonableness as articulated in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223.” 50.We think, with respect, the learned Judge misapprehended the issue. As already observed herein above, the 5th respondent was vested with jurisdiction to determine the request for review. According to pages 1027 to 1028 of the record, the main grievance that the appellant presented before the 5th respondent in Request of Review No. 18 of 2026, was the annulling or setting aside of the Letter of Cancellation of the Tender Reference No. KGN-BDD-016-2024, for reasons that the termination was irregular and consequently it was illegal, null and void. Pursuant to section 28 of the Act, that was an issue within the 5th respondent’s jurisdiction. Section 63 prescribes the procedure to be followed by a procuring entity in cancelling procurement proceedings. Thus, while considering the dispute, the 5th respondent was expected to examine whether the said cancellation of the subject tender complied with the procedure prescribed in law. 51.Central to the cancellation of the subject tender was the refusal by the Bank/financier to issue a No Objection letter. The appellant contends that the reasons given by the Bank, contained in the email dated 8th January 2026, found at page 302 of the record, do not constitute reasons which warrant cancellation of a tender, pursuant to section 63(1) of the Act. Section 63 of the Public Procurement and Asset Disposal Act provides as follows;“(1)An accounting officer of a procuring entity, may, at any time, prior to notification of tender award, terminate or cancel procurement or asset disposal proceedings without entering into a contract where any of the following applies-a.the subject procurement have been overtaken by—SUBPARA i.operation of law; orii.substantial technological change;b.inadequate budgetary provision;c.no tender was received;d.there is evidence that prices of the bids are above market prices;e.material governance issues have been detected;f.all evaluated tenders are non-responsive;g.force majeure;h.civil commotion, hostilities or an act of war; ori.upon receiving subsequent evidence of engagement in fraudulent or corrupt practices by the tenderer.2.An accounting officer who terminates procurement or asset disposal proceedings shall give the Authority a written report on the termination within fourteen days.3.A report under subsection (2) shall include the reasons for the termination.4.An accounting officer shall notify all persons who submitted tenders of the termination within fourteen days of termination and such notice shall contain the reason for termination.” 52.The email dated 8th January 2026, supposedly from the financier, and which seemingly was the basis upon which the subject tender was cancelled reads as follows;“We have observed that the nature of the complaint has evolved throughout the entirety of the redress process, ultimately leading to the disqualification of the initial winner based on their financial statement. Given the sequence of events from the initial objection and appeal by the JV of Sintecnica s.r.l and Steam s.r.l, it is evident that the PPARB’s decisions have not adhered to the procurement procedures outlined in the tender dossier. Moreover, the PPARB acted as a separate Evaluation Committee assigning scores and conducting evaluations based on local regulations. This approach has compromised the reliability and compliance of the overall process with the Bank’s general principles of Procurement.” 53.We are of the considered view that the 5th respondent properly acted within its statutory mandate in evaluating whether the 1st and 2nd respondents met the substantive and procedural requirements as prescribed under section 63, and the learned Judge erred in interfering. 54.We also find it troubling that whereas the record shows in pellucid fashion that the 5th respondent did not have any evidence before it that the 1st and 2nd respondents had complied with the statutory requirement under section 63(2) and (3), the learned Judge answered this critical issue by “simply googling” and finding that the written report had been uploaded onto the official Public Procurement Information Portal. With respect, the burden fell on those two parties to demonstrate compliance and within the stipulated timelines before the 5th respondent and the record shows that the 5th respondent clearly stated not having received or had sight of the said report. We think respectfully, that this matter of no little significance was not properly appreciated by the learned Judge and her seeming proactive suo motu solution on a contentious issue left her exposed to the complaints of descent to the arena of conflict levelled by the aggrieved parties. It is also left unanswered the question not only of whether there was compliance, but also whether the compliance was within the statutorily ordained timeline. That error invites this Court’s reversal. 55.It is for these reasons that we allowed the appeal with each party bearing own costs of the appeal. Conversely the cross-appeal failed by necessary force. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE, 2026.P. O. KIAGE.................................JUDGE OF APPEALJAMILA MOHAMMED.................................JUDGE OF APPEALS. ole KANTAI................................. JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar