https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6741

Sintmond Group Limited v Public Procurement Administrative Review Board & 2 others; JV of Munja Trading Limited and Marwil Energy Holding AS (Interested Party) (Judicial Review E101 of 2026) [2026] KEHC 6741 (KLR) (Judicial Review) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6741 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E101 of 2026 TW Ouya, J May 20, 2026 Between Sintmond Group Limited Applicant and Public Procurement Administrative Review Board 1st Respondent The Accounting Officer, Kenya Electricity Generating Company Plc 2nd Respondent Kenya Electricity Generating Company Plc 3rd Respondent and JV of Munja Trading Limited and Marwil Energy Holding AS Interested Party Judgment 1.The Applicant moved this honourable court vide an Originating Motion dated 2nd April 2026 seeking the following reliefs:i.That this matter be certified as extremely urgent and service be dispensed with in the first instance.ii.That this Honorable Court be pleased to issue an order of Certiorari, to remove into the High Court and quash and/or set aside part of the Decision of the Public Procurement Administrative Review Board (hereinafter, “the 1st Respondent”/”PPARB”) dated 23rd March 2026 (“the impugned Decision”), that is paragraphs 99 to 114 on pages 58 to 69 of the impugned Decision issued upon re-hearing in PPARB Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) (“the Tender” ).iii.That this Honorable Court be pleased to issue an order of Certiorari, to remove into the High Court and quash and/or set aside any award decision, Notification of Intention to Award Letter, Letter of Regret or any other award decision communication or Contract signed between the 2nd and 3rd Respondent and the Interested Party in respect to the Tender issued pursuant to the impugned Decision of 1st Respondent in violation of Section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”).iv.That this Honorable Court be pleased to issue an order of Prohibition, directed at the 2nd and 3rd Respondents, prohibiting them from implementing, acting upon or giving effect to the impugned Decision of the 1st Respondent dated 23rd March 2026.v.That this Honourable Court be pleased to issue an order of Mandamus, compelling the 1st Respondent to consider and give full effect to the findings of the Judgement of the High Court, Hon. Justice J. Chigiti (SC) in Judicial Review No. E351 of 2025 and Judicial Review No. E012 of 2026 in the re-hearing and to render a clear and reasoned determination on the issue of whether the 3rd Respondent conducted a lawful due diligence exercise, particularly in requesting from the Applicant additional client references comprising of documents outside the subject tender proceedings in light of the provisions of the Tender Document, the applicable and/or relevant law and the 1st Respondent’s findings on Mandatory Requirement 16 (MR 16) in PPARB 90 of 2025.vi.In The Alternative, and without prejudice to the foregoing, an order of Mandamus do issue compelling the 2nd and 3rd Respondent to conduct due diligence based on the Ex-parte Applicant’s bid, in full observance 1st Respondent’s findings in PPARB Application No. 90 of 2025 including but not limited to the disjunctive nature Mandatory Requirement 16 of the Tender and as upheld by the High Court in HCJR E351 of 2025, disregarding all extraneous issues and issues on additional client references as covered in the Regret Letter of 29th September 2025 and proceed to issue a Letter of Notification of Award to the rightful bidder in accordance to Sections 86 and 87 of the Act.vii.That in view of the protracted litigation in this matter and the unwillingness of the 1st, 2nd and 3rd Respondents to comply with the law and obey court orders and treat the Applicant fairly in these procurement proceedings, this Honourable Court be pleased to issue appropriate directions and further orders as it may deem fit to bring an end to the endless litigation while ensuring the Applicant is treated fairly.viii.That pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue An Interim Order For Stay, to stay the Execution and/or Implementation of the impugned Decision of the 1st Respondent dated 23rd March 2026 in the second rehearing of PPARB Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of the subject Tender.ix.That the Costs of these proceedings be awarded to the Ex-Parte Applicant. 2.The Application is premised on the grounds on the face of the Motion and the supporting averments by Richmond Gatu Muriithi, the Director and Group Chief Executive Officer (CEO) of the Applicant in the Supporting affidavit dated 2nd April 2026 and a Further affidavit dated 23rd April 2026. 3.The circumstances leading to these proceedings as narrated by the applicant are that the Respondent issued a tender inviting bid in respect of Tender No. KGN-SALE-005-2025 for Sale of Certified Emissions Reductions (CERs) (Re-Tender), relating to the sale of CERS (commonly referred to as carbon credits) to which the Applicant duly submitted a responsive bid. 4.Vide a letter dated 1st August 2025, the Applicant was notified that he had been disqualified from the process leading to the filing of PPARB Application No. 90 of 2025 before the Public Procurement Administrative Review Board. The application was made in favour of the Applicant vide a Ruling 28th August 2025, wherein the 1st Respondent rendered itself on the interpretation and application of Mandatory Requirement No. 16 (MR-16) at paragraph 122 and 124 of its Ruling by finding that the use of the words “and/or” under MR-16 rendered the requirement disjunctive, such that a bidder could comply by providing either client references (the first part of MR 16) or evidence of previous CER/VER transactions (the second part of MR 16), or both. 5.Notwithstanding the Board ordering re-evaluation of the bids, the applicant was still issued with a regret letter dated 29th September 2025. Accordingly, the Applicant filed a second Request for Review being PPARB Application No. 97 of 2025. The Board rendered a decision on 27th October 2025. Being aggrieved by the findings of the Board, the Applicant moved the High Court in Judicial Review Application No. E351 of 2025. 6.The decision of the Board was subsequently quashed by the Court vide a Judgment dated 19th December 2025 including directing that the matter be remitted back to the Board for rehearing within 14 days. The Board determined the matter as directed and rendered a decision which the Applicant was still dissatisfied with. Thus, leading to the filing of JR No. E012 of 2026. 7.The Application was heard and the Board was directed to render a determination within fourteen (14) days. The matter was reheard and a ruling rendered by the Board on 23rd March 2026. 8.Aggrieved and dissatisfied with the decision of the Board, the Applicant moved this honorable court seeking a review of parts of the Ruling of the Board. Especially on the basis that the disqualification was premised on the alleged failure to provide client references, contrary to the binding determinations previously made. 9.The Applicant further contended that the Board’s action at paragraph 101 to 107 of the impugned Ruling, of expanding Clause 14 of the Bid Data Sheet as read together with the scope, to require bidders to provide fresh data points not contained in the Tender Document as advertised constituted an error of law inter alia because the expansion of the criteria was a departure from binding precedent by the High Court which emphasized that evaluation criteria must be applied as stated and not modified during evaluation or review and that contracting authorities must act transparently and cannot change criteria mid-process. 10.The reliance of Clause 14 amounted to an introduction and application of an extraneous and unlawful requirement not contained in the Tender Document. 11.According to the Applicant, the conduct and impugned decision of the 1st Respondent violated the Applicant’s rights under Articles 10, 47, 50(1), and 227 of the Constitution, by undermining the rule of law, denying the Applicant a fair hearing, and sanctioning an unfair and unlawful procurement process. Therefore, unless this honorable court intervenes and grants the orders sought in the Originating Motion, the Applicant stands to suffer continued prejudice through the implementation of an unlawful decision and the perpetuation of an irregular procurement process. 12.The Applicant also filed written submissions where he submitted that the 1st Respondent acted illegally in failing to comply with the binding findings of the court. The Applicant having been found to have complied with MR 16 there was no need to rely on other issues to disqualify the applicant. 13.It was further submitted that the 1st Respondent failed to exercise its statutory mandate to the required standard by failing to ensure that the process adopted conformed with the law. 14.The Applicant contended that the 1st Respondent, in the impugned decision-making process, acted ultra vires of its powers and jurisdiction in particular, with respect to Section 80 (2) of the Act by sanctioning introduction of extraneous criteria. 15.It is also submitted that the decision of the 1st Respondent was tainted with illegality and unreasonableness and that the same had breached the Applicant’s legitimate expectation. The Applicant therefore invites this honourable court to intervene and correct the illegality by the 1st Respondent. 16.The 1st Respondent filed a Replying Affidavit sworn on 20th April 2026 by Philemon Kiprop the procurement professional currently serving as the Board Secretary of the Public Procurement Administrative Review Board. 17.The 1st Respondent maintained that he acted strictly within the confines of its statutory mandate. The 1st Respondent duly and comprehensively considered the judgment issued in the Judicial Review Application, the pleadings, documents, written submissions, lists and bundles of authorities filed by all parties, as well as the confidential documents submitted pursuant to Section 67(3)(e) of the Public Procurement and Asset Disposal Act. 18.Regarding the issue of Clause 14, the 1st Respondent averred that he interpreted the said Clause 14 of the Bid Data Sheet to mean that the Procuring Entity reserved the discretion to conduct a due diligence exercise on eligible bidders prior to the award of the contract, with the primary objective of assessing and verifying whether such bidders possessed the requisite technical, financial, and organizational capacity to effectively perform and deliver the contractual obligations to the required standards. 19.The 1st Respondent further averred that the Applicant was duly notified of the reasons for his disqualification in that although the Applicant had previously been awarded Tender No. KGN-SALE-001-2024 for the sale of 4,578,148 Certified Emission Reductions (CERs) valued at USD 32,047,036.00, it had failed to honour its contractual obligations notwithstanding two extensions granted to it and a stay order issued by the High Court. The Procuring Entity further observed that the current tender for 6,384,398 CERs included the same CERs that had previously formed part of the terminated contract on account of the Applicant’s non-performance, thereby creating a direct nexus between the earlier default and the current procurement. Additionally, the Applicant’s cited past transaction involving 200 CERs valued at USD 180 (KES 23,220) was deemed negligible in scale and insufficient to demonstrate capacity for a contract of such magnitude. Lastly, the Applicant had not provided any new or independent client references evidencing successful completion of comparable contracts. 20.The 1st Respondent contended that the Applicant was afforded an opportunity to submit client references to enable the Procuring Entity to undertake due diligence in accordance with Section 83 of the Act and Clause 14 of the Bid Data Sheet. Upon consideration of the material that was availed, the 1st Respondent found that the Procuring Entity could not be faulted for concluding that the Applicant had not satisfactorily demonstrated its capacity to perform the contract as required. In the circumstances, the 1st Respondent held that the Applicant’s disqualification at the due diligence stage was justified, not on account of failure to submit references, but on the basis that the information provided did not meet the requisite threshold. 21.Finally, the 1st Respondent stated that the Applicant had failed to demonstrate any elements of illegality, irrationality, procedural impropriety, or unfairness in the manner in which the 1st Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision. 22.The 1st Respondent also filed submissions where it maintained that its process in arriving at its decision was lawful, that it considered all relevant matters, that it ignored no relevant matters, and that it reached a conclusion reasonably open to it on the evidence. 23.The 1st Respondent maintained that the Applicant had succeeded twice before this Court in quashing previous Board decisions and was therefore seeking a third judicial review, not because the Board failed to comply with court directions, but because the Board reached a conclusion unfavorable to the Applicant. In any case, there was no court order mandating the 1st Respondent to award the Applicant, the only requirement by the court was that the evaluation be undertaken in strict adherence to the law. Therefore, in the absence of any illegality by the 1st Respondent, the best course of action is to dismiss the Applicant’s Originating Motion. 24.The 2nd and 3rd Respondents filed a Replying affidavit sworn on 13th April 2026 by Vincent Mamboleo Supply Chain Manager of the 3rd Respondent who deponed that the Originating Motion is without any legal or factual basis and ought to be dismissed as the Applicant failed to distinguish that the Decision in PPARB Application No 90 of 2025 was in respect of a decision on the mandatory evaluation while PPARB Application No 97 of 2025 is in respect of the conduct of the Due Diligence by the 3rd Respondent on its bid. 25.It was further deponed that that the due diligence was conducted in accordance with the law as relates to the parts of the Decision of the Second Rehearing as stated at paragraph 99 to 114 therein. There was no error of law, excess of jurisdiction, and or noncompliance as alleged or at all. 26.The 2nd and 3rd Respondents contended that the instant application seeks to raise issues not raised before the 1st Respondent during the hearing, which conduct amount to an abuse of the Court process. Therefore, the Applicant has failed to meet make out a case for grant of orders of Judicial Review and its Originating Motion ought to be dismissed. 27.The 2nd and 3rd Respondents also filed submissions where they maintained that although the Applicant has framed its case in the language of illegality, irrationality and procedural impropriety, as well as alleged violation of Article 227 of the Constitution , the gravamen of the complaint largely departs from a challenge to the Public Procurement Review Board decision-making process and instead targets the substantive correctness and legality of the tender document and the underlying procurement framework. 28.It was submitted that the Applicant’s act of inviting the Court to pronounce itself on whether those provisions of the tender document are lawful, reasonable or substantively fair, the Applicant effectively calls upon the Court to re-evaluate matters that fall within the statutory mandate of the Review Board and to substitute the Public Procurement Review Board judgment with that of this Court. Reliance was placed on Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Power & Lighting Company Plc & another (Interested Parties); Jamari Enterprises Limited (Ex parte Applicant) (Judicial Review Application E406 of 2025) [2026] KEHC 501 (KLR), where the Court held that such arguments amount to an impermissible invitation to interrogate the substantive correctness and legality of the tender document, rather than the legality of the procurement decision under review. 29.It was further submitted that the 2nd and 3rd Respondents further submit that the Applicant’s assertion that due diligence introduced “extraneous” or “non-existent” criteria is equally misplaced. Due diligence forms part of the implementation of the tender process and is directed at verifying the qualifications and representations made by bidders within their submitted bids. Therefore, to the extent that the Applicant invites this Court to determine what due diligence may or may not entail, such an invitation is inconsistent with the Court’s holding that judicial review does not extend to substituting the decision-maker’s judgment or redesigning the evaluation framework. 30.The 2nd and 3rd Respondent’s submitted that the Board fully complied with and faithfully implemented the orders of this Honourable Court issued on 26th February 2026 by rehearing the Request for Review afresh, considering the parties’ respective pleadings and submissions and arriving at an independent and reasoned determination. Therefore, the Applicant’s attempt to impugn the Board’s decision on grounds of illegality, procedural impropriety, or violation of fair administrative action is misplaced and amounts to a disagreement with the outcome of a properly conducted rehearing, which does not constitute a valid basis for judicial review. 31.In conclusion, the 2nd and 3rd Respondents submitted that the Applicant had failed to establish any of the recognized grounds for judicial review. The decision made by the Board, was made within the jurisdiction of the board and in accordance with Public Procurement and Asset Disposal Act, Fair Administrative Act, 2015 and Article 47 of the Constitution, 2010. The instant application is premised on a misapprehension of law governing due diligence in procurement and constitutes a ground for appeal disguised as judicial review, which this court is not permitted to entertain at all. Additionally, the application was filed out of time, since the mandatory 14 days window lapsed on 6th April 2026. The decision of the Board thus became binding on parties and final. 32.The 2nd and 3rd Respondents thus pray that this Court dismisses the originating Motion with costs to the Respondent. 33.This Court has carefully considered the pleadings, affidavits, written submissions, authorities cited by the parties, and the applicable legal framework. The main issues for determination are:i.Whether the 1st Respondent’s decision was illegal, irrational, procedurally unfair or otherwise amenable to judicial review;ii.Whether the Applicant is entitled to the reliefs sought. 34.The Applicant’s main contention is that the Respondents’ reliance on clause 14 to disqualify him from the bid was illegal, ultra vires and procedurally unfair and contrary to legitimate expectation. 35.The Respondents on the other hand maintain that the actions of the 1st Respondent were legal and procedurally fair and the instant application by the Applicant is outside the scope of judicial review as the Applicant is seeking to have the court interrogate the merits of the decision of the 1st Respondent. It is contended that the Applicant appears to favor a legal interpretation that results in the award being made in his favor despite not meeting the established requirements. 36.On whether the 1st Respondent’s decision is amenable to judicial review, judicial review is concerned with the decision-making process, not the merits of the decision itself. The traditional grounds upon which a judicial review court may intervene to disturb decisions by administrative bodies, tribunals or subordinate courts were enunciated in the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410. In this case Lord Diplock outlined three heads which he referred to as “the grounds upon which administrative action is subject to control by judicial review” being procedural impropriety, illegality and irrationality. Proportionality has also gained notoriety as a ground for judicial review. 37.From the record, it is evident that the 1st Respondent considered the Applicant’s pleadings, submissions, annexures, and the confidential procurement documents. 38.The 1st Respondent averred that the Applicant was duly notified of the reasons for his disqualification in that although the Applicant had previously been awarded Tender No. KGN-SALE-001-2024 for the sale of 4,578,148 Certified Emission Reductions (CERs) valued at USD 32,047,036.00, it had failed to honor its contractual obligations notwithstanding two extensions granted to it and a stay order issued by the High Court. The Procuring Entity further observed that the current tender for 6,384,398 CERs included the same CERs that had previously formed part of the terminated contract on account of the Applicant’s nonperformance, thereby creating a direct nexus between the earlier default and the current procurement. Additionally, the Applicant’s cited past transaction involving 200 CERs valued at USD 180 (KES 23,220) was deemed negligible in scale and insufficient to demonstrate capacity for a contract of such magnitude. Lastly, the Applicant had not provided any new or independent client references evidencing successful completion of comparable contracts. 39.The 1st Respondent contended that upon consideration of the material that was availed, the 1st Respondent found that the Procuring Entity could not be faulted for concluding that the Applicant had not satisfactorily demonstrated its capacity to perform the contract as required. In the circumstances, the 1st Respondent held that the Applicant’s disqualification at the due diligence stage was justified, not on account of failure to submit references, but on the basis that the information provided did not meet the requisite threshold. This position has not been challenged by the Applicant as untrue. 40.I am persuaded by the 1st Respondent’s submission that the Application seems to stem from the fact that the Board reached a conclusion unfavorable to the Applicant and not because the 1st Respondent failed to abide by the law. 41.Accordingly, this court is satisfied that in reaching the decision that it did, the 1st Respondent considered all the pleadings, evidence, submissions by the parties that were before it and the court orders issued in prior applications. This Court cannot therefore interfere merely because it might have reached a different conclusion on the facts. 42.It is therefore this Court’s finding that the Review Board did not ignore the court order nor did it misapprehend the law. The record does not support allegations of illegality, ultra vires, failure to consider material evidence, or breach of fair hearing. The Board’s mandate under Section 173 of the PPADA was lawfully exercised. 43.Further, the Applicant’s argument that the 1st Respondent offended his legitimate expectations has not been established or proven to the required standard. While the 1st Respondent was required to undertake a rehearing of the complaint by the Applicant, the court did not direct the 1st Respondent to ensure that the decision was ultimately made in favor of the Applicant. Therefore, there was no legitimate expectation that the 1st Respondent would make a decision in favor of the Applicant, all that was required was strict adherence to the law and procedures in determining the case by the Applicant. I find that the Applicant has not established its argument on legitimate expectation against the 1st Respondent to warrant the intervention of this honorable court. 44.The Respondents have also urged that the Applicant is seeking a review of the merits of the 1st Respondent’s decision yet this Court is only concerned with the procedure followed in reaching the decision and not the merits of the decision. 45.In Republic v Public Procurement Administrative Review Board & 2 others; H Young & Company (East Africa) Limited (Exparte); Comacon Limited JV Gulf Energy Limited (Interested Party) [2022] KEHC 10201 (KLR) it was observed that: 80.In the advent of the Constitution of Kenya, 2010, and specifically the proviso in Article 47, there has been a notable shift towards merit review in the court’s exercise of the judicial review jurisdiction. The court of Appeal in Judicial Service Commission & another vs. Lucy Muthoni Njora [2021] eKLR had this to say: “We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.” 81.In my view the expanded scope of judicial review accommodating merit review requires great circumspection lest the lines between judicial review and appeal become blurred or completely obliterated bringing with it unwelcome confusion in litigation before our courts." 46.As the Applicant has not demonstrated that the 1st Respondent acted ultra vires, irrationally, illegally, or in breach of the Constitution or fair administrative action principles, no basis exists for this Court to quash the impugned decision or to grant the reliefs sought. 47.While acknowledging the evolving jurisprudence particularly following Article 47 of the Constitution of Kenya, 2010 which allows courts in appropriate cases to consider the merits of administrative decisions. This Court cautions against blurring the distinction between review and appeal. It concludes that the instant case does not meet the threshold for such an expanded inquiry, since the applicant could as well have gone the appeal route. The Supreme Court in Edwin Dande v DPP & others Petition No. 6 (E007) Of 2022 (Consolidated with Petition Nos. 4 (E005) & 8 (E010) Of 2022) held thus:“(85)It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se”. 48.On interference with decisions of the 1st Respondent by the Courts, the Court of Appeal in the case of Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 others [2012] KECA 104 (KLR) observed thus:“The Review Board is a specialized statutory tribunal established to deal with all complains of breach of duty by the procuring entity. 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.” 49.The 2nd and 3rd Respondents contended that the Motion ought to be dismissed for being filed out of time. However, I find no merit in that allegation as the record shows, as demonstrated by the Applicant in its further affidavit, that the Application was filed within the statutory timelines as required by law. In the circumstances, I find that the Respondent has failed to demonstrate that the Motion ought to be dismissed on the basis of delay in filing the Application. 50.Having carefully analyzed and evaluated the material placed before this court by all the parties, and for the reasons given, I find and hold that the application dated 2nd April 2026 lacks merit and it is hereby dismissed. 51.Costs are in the discretion of the court. Having considered this matter as a whole, I find that it is in the interest of justice that each party bear their own costs of these proceedings and I so order. 52.The following orders shall ensue:i.The application dated 2nd April 2026 is hereby dismissed.ii.Each party shall bear own costs DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 20TH DAY OF MAY 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Yai for S. Munene for the ApplicantMrs Oduor for 2nd & 3rd RespondentsMrs. Obara for Seko for Interested PartyNo appearance for the 1st RespondentHamza/Kevin – Court Assistants