[2023] KEHC 22996 (KLR)

Space Contractors & Suppliers Investment Limited v Public Procurement Administrative Review Board; Accounting Officer, Kenya Ports Authority & 22 others (Interested Parties) (Judicial Review E025 of 2023) [2023] KEHC 22996 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22996 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E025 of 2023

OA Sewe, J

October 2, 2023

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND IN THE MATTER OF: THE DECISION MADE BY THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD ON 21ST AUGUST, 2023 THAT THE REQUEST FOR REVIEW FILED ON 31ST JULY 2023 WITH RESPECT TO TENDER NO. KPA/075/2022-23/ADM FOR THE PROVISION OF HOUSEKEEPING AND CLEANING SERVICES (GENERAL) BE DISMISSED AND IN THE MATTER OF: THE SAID DECISION BY THE RESPONDENT FAILING TO ADHERE TO THE PRINCIPLES OF TRANSPARENCY, ACCOUNTABILITY AND CREDIBILITY UNDER ARTICLES 10, 47, 201 AND 227 OF THE CONSTITUTION OF KENYA, 2010 AND THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT AND IN THE MATTER OF: THE SAID DECISION BY THE RESPONDENT BEING UNREASONABLE AND IRRATIONAL AS THE RESPONDENT HELD THAT IT HAD NO JURISDICTION TO DETERMINE THE SAID REQUEST FOR REVIEW AND ALSO THAT THE APPLICANT DID NOT HAVE LOCUS STANDI TO FILE THE SAID REQUEST FOR REVIEW AND IN THE MATTER OF: THE APPLICANT’S EXERCISE OF A STATUTORY RIGHT GRANTED BY SECTION 175 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT TO LODGE A JUDICIAL REVIEW APPLICATION FOLLOWING THE DECISION BY THE RESPONDENT

Between

Space Contractors & Suppliers Investment Limited

Applicant

and

Public Procurement Administrative Review Board

Respondent

and

Accounting Officer, Kenya Ports Authority

Interested Party

Kenya Ports Authority

Interested Party

Daorab Enterprises

Interested Party

Gedlinks General Supplies & Construction Limited

Interested Party

Kahuna Kapital Investment Limited

Interested Party

Fransa Agencies

Interested Party

Sender Services

Interested Party

Somakim Construction And Service Trading Limited

Interested Party

Suldanka Harti Limited

Interested Party

Bizmart Enterprises

Interested Party

Maeji Kaiho

Interested Party

Norgen Enterprises Limited

Interested Party

Mara Supplies

Interested Party

Simca Agencies Limited

Interested Party

Forbes Technics Limited

Interested Party

Nakaj Services

Interested Party

Acentri Limited

Interested Party

Riley Falcon Security

Interested Party

Rokeen Enterprises

Interested Party

Resolink Scc Ltd

Interested Party

Remarc Cleaning Services

Interested Party

The Xenry Cleaning Services Ltd

Interested Party

Cleanco Investmentserprises

Interested Party

Ruling

[1]Before the Court for determination is the Chamber Summons dated 25th August 2023. It was filed by the applicant, Space Contractors & Suppliers Limited, pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Sections 3 and 175 of the Public Procurement & Asset Disposal Act, No. 33 of 2015 and Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010 for orders that:(a)Spent.(b)the Court be pleased to grant the applicant leave to apply for the following orders:(i)An order of certiorari to quash the decision made on the 21st August 2023 by the respondent in PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer Kenya Ports Authority and 22 Others and consequently the award made on 10th July 2023 by the 1st and 2nd Interested parties with regard to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa.(ii)That the grant of leave to apply for the judicial review orders sought herein do operate as a stay against the 1st and 2nd interested parties, their agents and servants from signing any contract with the 3rd to 23rd interested parties with respect to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa.(iii)That the costs of the application be provided for.

[2]The brief background to the application is that, sometimes in January 2023, the respondent invited interested persons to bid for Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa; and that the applicant presented its bid along with others. Vide a Notification of Award dated 10th July 2023, the 2nd interested party notified the applicant that its bid was not successful; and that the 3rd to 23rd interested parties were the successful bidders for the said tender. Being aggrieved by the decision, the applicant filed an application for review before the Public Procurement Administrative Review Board (PPARB), being PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer Kenya Ports Authority and 22 Others. In its decision dated 21st August 2023, the respondent dismissed the applicant’s request for review; thereby precipitating the filing of the instant application.

[3]According to the applicant, the respondent’s decision is flawed and therefore amounts to an illegality for it violates Articles 10, 47, 201 and 227 of the Constitution. The applicant further contended that, under Section 175 of the Public Procurement and Asset Disposal Act (PPADA) once an applicant files a judicial review application, the tendering process ought to be automatically stayed pending the outcome of the judicial review application. It was further the assertion of the applicant that it was denied its right to fair hearing under Articles 50 and 159 of the Constitution; and therefore that, in all the circumstances, leave to commence judicial review proceedings ought to apply as a stay of any further proceedings in the said tender process so as not render the application nugatory.

[4]The application was supported by the Verifying Affidavit sworn by Mercy Vosenah Musera on 25th August 2023 in which the grounds aforestated were adverted to. The applicant averred that it is inconceivable and untenable for the 1st and 2nd interested parties to have set the mandatory conditions that all successful bidders ought to have complied with and yet proceed in the same breath to award parts of the tender to some bidders who had not met some of the said conditions. The affiant further stated that by denying the applicant an opportunity to be heard on the merits, the respondent compounded an illegality; an act which ought not to be countenanced by this Court.

[5]The applicant annexed to its Verifying Affidavit copies of the relevant parts of the tender document, copies of the responses filed by the interested parties to the Request for Review, as well as the decision of the PPARB, and prayed that the application be allowed and the orders sought therein granted.

[6]In response to the application, Mrs. Omulama for the for the 6th, 8th, 10th, 14th 16th and 19th interested parties relied on his Notice of Preliminary Objection dated 7th September 2023, and raised the following grounds:(a)That the Court has no jurisdiction to entertain an incompetent application seeking leave to file an application for judicial review which is an unlimited constitutional right under Article 22(1) and 23(3)(f) of the Constitution as read with Section 175 of the PPADA; as there is no constitutional or statutory requirement for leave prior to the commencement of judicial review proceedings to enforce a right to judicial review under Section 175 of the PPADA.(b)The drafters of the Constitution intentionally ousted the jurisdiction of the Court by making judicial review application a right under the Constitution and the PPADA to precisely avert a situation like this where an applicant may think that the Court has discretion to decide whether to permit or deny applications for judicial review.(c)That Order 53 of the Civil Procedure Rule has been rendered otiose and therefore inapplicable to proceedings for the enforcement of a right to judicial review; particularly a right to judicial review of procurement under Section 175 of the PPADA; and that all that remains is for the Court to declare Order 53 of the Civil Procedure Rules unconstitutional.(d)That the judicial review process under Section 175 of the PPADA is distinct from the judicial review process under Order 53 of the Civil Procedure Rules.(e)That the judicial review process under Section 175 of the PPADA is a constitutional right and the High Court has no jurisdiction to entertain any application for leave.(f)That the applicant misapprehended the law and the Court must not waste its time on account of the applicant’s invitation to enforce a right which it already has at its disposal.(g)The right to judicial review of procurement can only be invoked by way of a petition and not by way of leave to apply for judicial review.

[7]Dr. Okubasu filed Grounds of Opposition dated 1st September 2023. Accordingly, the 4th, 12th, 13th, 17th, 18th, 20th and 21st interested parties contended that:(a)Granting of leave to commence judicial review proceedings is not a mere formality issued as a matter of course, as the applicant ought to demonstrate a prima facie case and/or arguable case; which burden has not been discharged.(b)The applicant has not laid any basis for grant of leave since the impugned Board decision was lawful and in tandem with the holding of the superior courts in:(i)James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 Others [2019] eKLR.(ii)JRMISC/E134/21: Smartmartic International Holding B.V. v Public Procurement Adminstrative Review Board & Others.(iii)Royal Hisham Limited v Kenya Ports Authority [2021] eKLR[c]That the applicant has not impeached the decision-making process of the PPARB and in the event leave is granted there would be no cause of action capable of sustaining substantive judicial review proceedings because:(i)the applicant fully participated in the proceedings at the Board and a decision made therefrom and cannot therefore claim to have been condemned unheard; and(ii)Not every person is suited to institute a review at the Board as the law allows a non-suited person who is not competent to request for review to pursue other legal remedies/avenues including filing a civil case at the High Court as was held in Royal Hisham Limited v Kenya Ports Authority [2021] eKLR.[d]That the issuance of stay orders is discretionary and the applicant has not demonstrated sufficient grounds for exercising such discretion in its favour.[e]That the proceedings are brought in bad faith and are an abuse of the court process intended to benefit existing service providers by frustrating the award of tenders to new service providers through the challenged procurement process.[f]That the issuance of stay orders would aid the applicant in achieving its ulterior motives.[g]That the application for leave is vexatious, incurably defective, bad in law and an abuse of the court process and therefore fails to meet the minimum threshold warranting issuance of the orders sought.

[8]Accordingly, the 4th, 12th, 13th, 17th, 18th, 20th and 21st interested parties prayed that the Chamber Summons dated 25th August 2023 be dismissed and orders made as to costs.

[9]On behalf of the 2nd interested party, a Notice of Preliminary Objection dated 1st September 2023 was filed by Mr. Kirui. The grounds set out therein are:[a]That the Court lacks jurisdiction to hear the application herein by virtue of the express provisions of Article 23(3)(f) of the Constitution as well as Sections 7, 8 and 9 of the Fair Administrative Action Act, No. 4 of 2015. [b]That with the advent of the new Constitution, leave as envisioned under Order 53 Rule 1 of the Civil Procedure Rules was rendered otiose and an applicant is simply required to file the substantive motion.[c]That the applicant’s application filed on 25th August 2023 is therefore frivolous and abuse of the court process and ought to be struck out with costs to the 2nd interested party.

[10]On behalf of the respondent Grounds of Opposition dated 13th September 2023 were filed by Ms. Kagoi, a state counsel in the Office of the Attorney General. She contended that:[a]The Chamber Summons dated 25th August 2023 is incompetent, misconceived and bad in law;[b]The applicant lacks the locus standi to institute a judicial review case as the respondent lacked jurisdiction over the Request for Review sought by the applicant; and therefore the orders sought by the applicant cannot apply to the respondent.[c]The application is an abuse of the court process as the respondent is bound by the PPADA and thus, it cannot bend the law to accommodate the applicant.[d]The applicant cannot purport to state that the respondent abdicated its responsibility by violating Section 167 of the PPADA as the respondent downed its tools for want of jurisdiction.[e]The decision by the respondent dated 21st August 2023 and which is the subject matter of the proceedings was and still is reasonable, rational and lawful and was made without overreaching the respondent’s mandate and jurisdiction.

[11]Grounds of Opposition were also filed on behalf of the 1st and 2nd interested parties by the firm of M/s Robson Harris Advocates LLP dated 11th September 2023. Accordingly, Mr. Mbogo prayed for the dismissal of the application with costs on the following grounds:[a]The applicant has not established a prima facie case to warrant the issuance of stay orders.[b]The applicant does not have the locus standi under Section 175(1) to file the instant application as it has not shown how it is aggrieved by the decision of the Review Board.[c]The services to be procured are essential services of the 2nd interested party and thus, issuing a stay over the procurement of the same is against general public interest.[d]The applicant has consistently frustrated attempts by the 2nd interested party to finalize the tendering process and award contracts to new service providers in order to force the hand of the 2nd interested party in ensuring that the current service providers are retained due to the pendency of these proceedings.[e]It is in the interest of justice that, as the judicial review process is ongoing, the Court allows the 2nd interested party to enjoy the essential services subject of the tender.[f]As held in Republic v Public Procurement Administrative Review Board, Ex Parte Transcend Media Group Limited [2017] eKLR the issuance of stay orders is discretionary, and in allowing/disallowing the same, the alternative which tends to produce the greatest happiness for the greatest number of people, and one that produces the best outcome, is always preferred.

[12]On behalf of the 5th interested party, Grounds of Opposition were filed herein dated 11th September 2023 by Mr. Maloba, in which counsel essentially reiterated the grounds relied on by the 1st and 2nd interested parties. Thus, Mr. Maloba contended that:[a]The applicant has failed to establish a prima facie case justifying the issuance of stay orders.[b]The applicant does not have locus standi under Section 175(1) of the PPADA to file the instant application as it has not demonstrated how it is aggrieved by the decision of the Review Board.[c]The services to be procured are integral to the 2nd interested party, and thus, issuing a stay over the procurement of the same is against the public interest.[d]The applicant has consistently frustrated attempts by the 2nd interested party to finalize the tendering process and award contracts to new service providers in order to force the hand of the 2nd interested party in ensuring that the current service providers are retained due to the pendency of these proceedings.[e]It is in the interest of justice that, as the judicial review process is ongoing, the Court allows the 2nd interested party to enjoy the essential services subject of the tender.(f)the issuance of stay orders is discretionary, and the applicant has not demonstrated sufficient grounds for the Court to exercise such discretion in its favour.(g)The proceedings are brought in bad faith and are only intended to benefit existing service providers by frustrating the award of tenders to new service providers through the challenged procurement process.(h)That the subject application is therefore frivolous, vexatious, and an abuse of the court process and ought to be struck out with costs to the 5th interest party.

[13]The application was urged by way of written submissions, which were highlighted by counsel on 20th September 2023. Thus, Mr. Gikandi for the applicant reiterated the averments set out in the Supporting Affidavit sworn by Mercy Vosenah Musera as to the factual basis of the application. He submitted that the PPADA does not set out the procedure that the judicial review application provided for under Section 175 of the Act should follow; and therefore litigants are at liberty to rely on Sections 8 and 9 of the Law Reform Act, Chapter 26 of the Laws of Kenya as read with Order 53 of the Civil Procedure Rules. He relied on Speaker of the National Assembly v Njenga Karume [1992] eKLR to buttress his argument that unless the law is amended the procedure in existence must be followed. It was further the submission of Mr. Gikandi that the 14-day period provided for in Section 175 of the PPADA was intended for specific purpose of the review application to the Board; and that the Board abdicated its duty by not hearing and determining the procurement dispute. He therefore urged the Court to grant leave as prayed and stay the subject procurement in the meantime.

[14]Ms. Kagoi for the respondent relied on the Grounds of Opposition dated 13th September 2023 and her written submissions dated 14th September 2023. She argued that, by dint of Section 167 of thePPADA, the applicant was under obligation to file a Request for Review within 14 days of the notification of award; and that having failed to file its Request in good time the application for review is time barred. She relied onRepublic v Chief Magistrate, Milimani Commercial Courts & 2 Others, Ex Parte Fredrick Bett [2022] eKLR as to the purpose of leave and submitted that, in the instant case, due process was followed and all parties were given an opportunity to present their case and were all heard before the respondent pronounced itself. Accordingly, Ms. Kagoi urged the Court to find that the application is incompetent, misconceived and bad in law.

[15]Ms. Kagoi further submitted that judicial review does not concern itself with the merits of a decision; and therefore that, since the respondent downed its tools for want of jurisdiction, there is no basis for a substantive judicial review application. She relied on Republic v District Land Adjudication and Settlement Officer Maara Sub-County & 3 Others, Ex Parte M’Nyiri Ragwa & Another [2021] eKLR and prayed for the dismissal of the application for leave.

[16]On behalf of the 1st and 2nd interested party, Mr. Mbogo relied on the Grounds of Opposition dated 11th September 2023 and reiterated his posturing that the application for leave is misconceived; and that since a Review can only be entertained within 14 days, to grant leave would be an exercise in futility. He further submitted that, in any case, the applicant has not made out a prima facie case to warrant the granting of leave. He added that to grant stay in the circumstances of this case would go against the public interest as the matter has already been overtaken by events. He consequently prayed that the application be dismissed as the contracts have already been entered into.

[17]Dr. Okubasu also opposed the application for leave. He relied on the Grounds of Opposition and written submissions dated 11th September 2023 in urging the Court to find the granting of leave is not a mere formality. He pointed out that the applicant’s prayers are ambiguous as to whether the impugned decision is that of the respondent or the procuring entity. He also submitted that, even if the Court were to grant leave, nothing turns on the intended substantive motion; and that the grant of stay would militate against the public interest. He consequently prayed for the dismissal of the application with costs.

[18]Mr. Sang, counsel for the 6th, 8th, 10th, 14th, 16th and 19th interested parties submitted that Review of Procurement under Section 175 of the PPADA is an entirely different process from judicial review as contemplated under Order 53 of the Civil Procedure Rules. He relied on his clients’ Notice of Preliminary Objection and the grounds set out therein and prayed for the dismissal of the application. Mr. Sang also took issue with the fact that the applicant had filed a similar application which had been withdrawn, being Mombasa Judicial Review Application No. 24 of 2023. He therefore submitted that the Court is functus officio.

[19]Lastly, Mr. Hasham for the 5th interested party relied on the Grounds of Opposition dated 11th September 2023. He reiterated the stance that the applicant lacks the locus standi to bring the instant application under Section 175 of thePPADA; and that to grant stay orders over the entire procurement proceedings would not be in the public interest.

[20]In response to the submissions made on behalf of the respondent and the interested parties, Mr. Gikandi explained that the application referred to by Mr. Sang was filed in error and was withdrawn before this particular application was brought. In response to the argument that the application has been overtaken by events, Mr. Gikandi submitted that there is no evidence presented herein to prove that the contracts have already been filed. In his view, the application was filed in time and therefore ought to be allowed, noting that leave is often granted ex parte.

[21]I have given careful consideration to the application dated 25th August 2023. It is expressed to have been filed under Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, essentially seeking leave to file a substantive judicial review application. Accordingly, Rule 1 of Order 53 provides:(1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.(3)The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.

[22]The rationale for leave was well explicated in Mombasa HCMCA No. 384 of 1996: Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others thus:The purpose of application for leave to apply for Judicial Review is firstly to eliminate at an early stage any applications for Judicial Review which are either frivolous, vexations or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial Review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...Leave may only be granted therefore if on the material available before the court the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised Judicially”.

[23]In addition to Grounds of Opposition, the respondent, the 2nd interested party and some of the other interested parties also filed Notices of Preliminary Objection which the Court is duty bound to give preference. In Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd [1969] E.A 696, it was held that:“...a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”

[24]In this instance an issue has been taken in respect of the Court’s jurisdiction. As was aptly expressed by the Court of Appeal in theOwners of Motor Vessel "Lillian s" v Caltex Oil (K) Ltd [1989] KLR 1:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."

[25]There is no gainsaying that the question of jurisdiction is one that must be taken in limine. In the MV Lillian S Case, the Court (per Nyarangi, JA) held that:“...it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it..."

[26]Accordingly, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:“A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution}} confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."

[27]That the Court has jurisdiction under Articles 22, 23(3)(f) and 165 to grant the orders sought is not in doubt. Moreover, Section 175(1) of thePPADA is explicit that:“A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.”

[28]However the angle introduced by counsel for the respondent and interested parties was that the Court has no jurisdiction to entertain an incompetent application seeking leave yet judicial review is an unlimited constitutional right under Article 22(1) and 23(3)(f) of the Constitution as read with Section 175 of the PPADA. They took the posturing that there is no constitutional or statutory requirement for leave prior to the commencement of judicial review proceedings to enforce a right to judicial review under Section 175 of the PPADA. Counsel further posited that the drafters of the Constitution intentionally ousted the jurisdiction of this Court by making judicial review application a right under the Constitution and the PPADA to precisely avert a situation like this where an applicant may think that the Court has discretion to decide whether to permit or deny applications for judicial review.

[29]The attention of the Court was drawn to the following decisions, among others, in support of the foregoing arguments:(a)James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 Others (supra) in which it was held that in order to file a review application to thePPARB, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage; and therefore that it is not any and every candidate or tenderer who has a right to file for administrative review. The Court proceeded observed that:“There is sound reason why only candidates or tenderers who have legitimate grievances may approach the Board. In the present case, it is common ground that the appellants were eliminated at the very preliminary stages of the procurement process, having failed to make it even to the evaluation stage. They therefore were, with respect, the kind of busy bodies that section 167(1) was designed of keep out. The Board ought to have ruled them to have no locus, and the learned Judge was right to reverse it for failing to do so. We have no difficulty upholding the learned Judge.”(b)Royal Hisham Limited v Kenya Ports Authority (supra) in which it was held that:“It then follows that a person who is not competent to request for review, has an avenue of other legal remedies including filing of a civil suit as the case herein. Therefore, a person who would otherwise be locked out from invoking the provisions of the Procurement and Asset Disposal Act is not barred from seeking alternative remedy under other provisions of the law. This was the position adopted by the Court in the case of Elias Mwangi Mugwe v Public Procurement Administrative Review Board & 5 Others [2016] eKLR where it explicitly expressed itself thus:“…any person who has no automatic right to participate in the review proceedings may properly resort to other available modes of ventilating his rights.”

[30]In the light of the foregoing, the key issue emerging for consideration is whether the judicial review process under Section 175 of the PPADA is distinct from judicial review process under Order 53 of the Civil Procedure Rules; and if yes, whether the instant application is incompetent. I am in total agreement that since judicial review reliefs are now anchored in the Constitution it is no longer necessary, where an approach is made under the Fair Administrative Action Act or the PPADA to apply for leave. It is however equally true that Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules are yet to be repealed. While there is a school of thought that propounds the view that the latter provisions be read with the necessary adaptations provided for in Section 7 of the Sixth Schedule of the Constitution of Kenya, there is yet another school of thought that favours co-existence of the provisions. Hence, in Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) Hon. Korir, J. (as he then was) acknowledged that:“…the tension between the common law judicial review and the judicial review founded on the Constitution is apparent. The application of the rules of order 53 of the CPR to judicial review applications brought under sections 8 and 9 of the LR Act and the non-application of the rules to judicial review applications premised on the Constitution has resulted in what appears to be a two-track judicial review process; one under common law and another under the Constitution”

[31]Ultimately, Parliament would be best placed to bring harmony by repealing Sections 8 and 9 of the Law Reform Act to pave way for appropriate rules of procedure in this area of law. I therefore agree entirely with the sentiments of the Court inMatagei v Attorney General (supra) that:76. A perusal of the FAA Act clearly shows that Parliament intended to substitute the judicial review under the common law with statutory judicial review and this explains why Part III (sections 7 to 11) of the Act is clearly titled “Judicial Review”. One cannot therefore understand why Parliament did not go to the whole hog by repealing sections 8 and 9 of the LR Act. The failure to repeal the impugned provisions of the LR Act has led to the continuing confusion as regards the procedure for institution of judicial review proceedings. It is noted that rules have not been made as provided by section 10(2) and regulations have also not been enacted under section 13 of the FAA Act even though the law is already operational. Lack of procedural rules force applicants to resort either to order 53 of the CPR or constitutional petitions when seeking orders of judicial review…80. The procedural rules in order 53 of the CPR governed judicial review prior the promulgation of the Constitution and are still in force as they have not been repealed. There, however, would appear to be a clear intention to repeal and replace these rules and their originating law being sections 8 and 9 of the LR Act.

[32]On whether leave would be a requirement even where an approach is made by way of a constitutional petition, again I am in agreement with the position taken in Matagei v Republic (supra) that:90. The petition before this court though drafted as an attack on sections 8 and 9 of the LR Act is essentially a challenge on the requirement for leave prior to the commencement of judicial review proceedings. This is the narrow question that I am required to answer. In answering this question, I find that the petitioner has not put forward any convincing argument that the need for leave before commencement of judicial review proceedings violates articles 22, 23, 48 and 59(c) & (d) being the provisions of the Constitution upon which his petition is premised. The requirement for leave does not impede access to justice as the decision whether or not to grant leave is at the discretion of the judge, who must nevertheless exercise the discretion judiciously. In any case, denial of leave can be appealed-see Mirugi Kariuki v Attorney General [1992] eKLR.91. It is also noted that the necessity for leave before commencement of legal proceedings is a requirement in various areas of legal practice. For instance, there is need for leave before one can appeal certain decisions under the Civil Procedure Rules, 2010. The need for leave by itself cannot therefore be said to be unconstitutional. Fortunately, the petitioner need not seek leave to commence judicial review proceedings under the FAA Act.

[33]Hence, it is optional for a party to seek leave or not before approaching the Court with a substantive application. I am fortified in this stance by the decision of a 5-judge bench of the Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR in which it was held:“In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act. The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both...We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non-exclusive judicial review approaches."

[34]In the premises, the argument that the application is misconceived is therefore baseless. I am further convinced that it would be speculative and indeed preemptive to simply deny leave on the ground that the substantive application may not be determined within 45 days. Commenting on the apparent conflict in this area of the law, Hon. Aburili, J. observed in Peesam Limited v Public Procurement Administration Review Board & 2 others [2018] eKLR thus:“…there is a conflict between Section 175(3) of the Act, and Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules with the latter provision making no stipulations on time limits for determination of Judicial Review proceedings challenging public administrative decisions; and Section 8 of the Fair Administrative Action Act 2015 which determines the time limit to 90 days. A decision made by Public Procurement Administrative Review Board is an administrative decision challengeable by Judicial Review under the Fair Administrative Action Act.82. And since under the Law Reform Act and order 53 of the Civil Procedure Rules leave must first be obtained to commence Judicial Review proceedings, the ambiguity in Section 175(3) (5) is, when does time begin to run"83. This question is posed because the Statutes and Rules are silent, whereas under the Fair Administrative Action Act, 2015, there is no requirement for leave to institute Judicial Review proceedings.”

[35]That said, the next question to pose is whether, in this instance, the applicant has made out a case for the grant of leave. It must be borne in mind that, at this stage, the Court need not go into the matter in depth; and therefore it would be premature to consider the question whether the applicant lacks locus standi to file substantive judicial review application. Similarly, the arguments around the question whether or not the applicant has impeached the decision-making process of the PPARB and whether in the event leave is granted there would be a cause of action capable of sustaining substantive judicial review proceedings are in my view premature.

[36]Looked at from that perspective, it is manifest that at paragraph 5 of the Statement the applicant has shown that its complaint is premised on the assertion that it was denied its right to a hearing under Article 50; and that by its decision, the respondent committed a violation of Articles 10, 47, 201 and 227 of the Constitution as well as Section 167 of the PPADA. In the applicant’s view the decision of the PPARB is not only illegal but also irrational. That is sufficient for purposes of the application for leave.

[37]As to whether the leave should operate as stay, it must be remembered that, even as the larger public interest must be a relevant factor, the object of stay is to prevent the decision maker from continuing to implement the impugned decision. This was well articulated in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 thus:“… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken.(4)The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise…”

[38]In the premises, I find merit in the Chamber Summons dated 25th August 2023. The same is hereby allowed and orders granted as hereunder:(a)That leave be and is hereby granted to the applicant to apply for order of certiorari to quash the decision made on the 21st August 2023 by the respondent in PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer Kenya Ports Authority and 22 Others in respect of the award made on 10th July 2023 by the 1st and 2nd Interested parties with regard to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa.(b)That the leave thus granted to apply for the judicial review orders sought herein do operate as a stay against the 1st and 2nd interested parties, their agents and servants from signing any contract with the 3rd to 23rd interested parties with respect to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa.(c)That the substantive application be filed and served within 3 days from the date hereof.(d)That the costs of the application be costs in the substantive application.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF OCTOBER 2023OLGA SEWEJUDGE