https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11092

Spenomatic Kenya Ltd v CPA Mohamed Osman Adan the General Manager/CEO the East African Portland PLC & another (Judicial Review E196 of 2024) [2026] KEHC 11092 (KLR) (Judicial Review) (21 July 2026) (Ruling) Neutral citation: [2026] KEHC 11092 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E196 of 2024 WM Musyoka, J July 21, 2026 Between Spenomatic Kenya Limited Applicant and CPA Mohamed Osman Adan the General Manager/CEO the East African Portland PLC 1st Respondent East African Portland Cement 2nd Respondent Ruling 1.I am called upon to determine an application, dated 4th May 2026. It seeks 3 principal orders. 2.The first is for the setting aside, vacating or discharge of the judgement that was delivered on 7th May 2025, and the decree extracted from it, and all consequential orders. In the alternative, it seeks that the judgement of 7th May 2025 be reviewed or varied, by discharging the grant of the order of mandamus, with a declaration that Tender No. EAPCPLC/RFP/009/2023 has lapsed by effluxion of time, under section 135(4) of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya. The second principal prayer is for a finding and declaration that, in light of the change in shareholding and control of the 2nd respondent, the 2nd respondent no longer falls within the definition of a “public entity,” within the meaning of section 2 of Public Procurement and Asset Disposal Act, for the purposes of the procurement process the subject of the impugned judgement. The third seeks that the conviction of the 1st respondent, on 17th December 2025, be vacated, and the 1st respondent be discharged. 3.The grounds on the face of the application are to the effect that section 135(4) of the Public Procurement and Asset Disposal Act is couched in mandatory terms, that a contract is to be signed within the tender validity period. It is averred that the tender validity period, for Tender No. EAPCPLC/RFP/009/2023, lapsed on or about 28th August 2024, being 30 days after 29th July 2024, which was the date of the decision of the Public Procurement Administrative Review Board, which had extended the tender validity period for 30 days, and no further extension was granted thereafter. It is also averred that the mandamus order cannot compel performance of an act prohibited by statute, and Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR) is cited. 4.The other ground is that the shareholding of the 2nd respondent has changed, for on 4th December 2025, Kalahari Cement Limited, a subsidiary of Pacific Cement Limited, within the Amsons Group, acquired 27% of the share capital from the National Social Security Fund, without triggering a mandatory takeover offer. Kalahari Cement Limited had previously acquired 29.2% shareholding, bringing its total shareholding to 56.2% of the total issued share capital of the 2nd respondent. Bamburi Cement Limited, another company within the Amsons Group, holds 12.5% shareholding in the 2nd respondent, bringing the total shares held by the Amsons Group to 68.7%, against 25.3% held by the National Treasury. That meant that the Government no longer holds a controlling interest in the 2nd respondent, by virtue of the definition of a state corporation in the State Corporations Act, Cap. 446, Laws of Kenya, and it is reasonably not a “public entity,” within the meaning of section 2 of the Public Procurement and Asset Disposal Act, as read with Article 227 of the Constitution. 5.It is averred that, subsequent to that change in shareholding, the composition of the board changed, with the 2 board members representing the Government, exiting on 20th February 2026, and being substituted by 2 non-Government directors. On 10th April 2026, the board member, representing the National Social Security Fund, also exited, to be replaced by a non-executive board member from the Amsons Group. It is submitted that the changes in the governance structure of the 2nd respondent has constrained the capacity of the 2nd respondent to comply with the impugned judgement. 6.It is argued that 3 years have lapsed, since the submission of the tender in May 2023, which has meant that there must have been changes in the cost of equipment and regulatory licensing requirements, and the technical and financial assumptions, upon which the original tender rested, are no longer current. It is submitted that the setting aside of the judgement would be just. It is averred that there has been goodwill, on the part of the respondents, and the applicant would not suffer any prejudice, which cannot be compensated in damages. 7.The affidavit in support is sworn by the 1st respondent, who is the General Manager and Chief Executive Officer of the 2nd respondent. He avers that the 2nd respondent had advertised a tender, No. EAPCPLC/RFP/009/2023, for design, supply, installation and commissioning of a grid tied solar PV plant. The tender closed on 4th May 2023. The Public Procurement Administrative Review Board rendered a decision, on 29th July 2024, in Request for Review No. 61 of 2024, which extended the tender validity period for 30 days. In the instant cause, the court, on 7th May 2025, issued orders of mandamus, directing the respondents to issue a notification of award, within 7 days, and to complete the procurement process, within 60 days. On 15th November 2025, the 1st respondent was found guilty of contempt of court, for failure to comply with the judgement. 8.The 1st respondent avers that he and the 2nd respondent had taken steps, since then, towards compliance with the orders of the court. A notification of award, dated 15th December 2025, was issued, payment of costs of Kshs. 250,000.00 was made, a performance guarantee was accepted, an implementation committee was constituted, and the 1st respondent attended court and apologised. 9.The 1st respondent further avers that the tender validity period for the impugned tender expired on or about 28th August 2024, going by section 135(4) of the Public Procurement and Asset Disposal Act, which expressly provides that “a contract shall be signed within the validity period.” He submits that the notification of award was issued on 15th December 2025, some 15 months after the lapse of the extended validity period. He argues that a mandamus order cannot issue to compel performance of an act prohibited by a clear statutory provision, and, for that reason, the respondents are unable, as a matter of law, to execute a contract in respect of a tender, whose validity period lapsed a long period ago. 10.The 1st respondents further avers that there are changes in the shareholding of the 2nd respondent, with Kalahari Cement Limited acquiring 29.2% shares, in the 2nd respondent, from Associated International Cement Limited and Cementia Holdings AG, and that an exemption application from a mandatory takeover offer had been lodged with the Capital Markets Authority, the regulator, on 12th November 2025, referring to a notice of intention published on 1st August 2025, and accepted on 5th August 2025, by the regulator. On 4th December 2025, the regulator approved acquisition of 27% from the National Social Security Fund, by Kalahari Cement Limited, without triggering a mandatory takeover offer. It is asserted that those acquisitions have placed the shareholding of Kalahari Cement Limited, in the 2nd respondent, at 56.2%. It is further asserted that Bamburi Cement Limited, which is also a member of the Amsons Group, together with Kalahari Cement Limited, holds 12.5% shareholding in the 2nd respondent, which translates to a total of 68.7% ownership of the 2nd respondent by companies within the Amsons Group. It is argued that the effect of that is that the Amsons Group has become the majority shareholder, with the Government holding a mere 25.3% and other shareholders holding the balance of 6.0%. 11.The 1st respondent avers that those changes in shareholding have also had an effect on the governance of the 2nd respondent, for on 20th February 2026, 2 members of the board, representing the Government, exited the board, and were replaced by new board members, who do not represent the Government. It is argued that that exit by Government board members meant that the Government was no longer exercising direct control over the 2nd respondent. On 10th April 2026, National Social Security Fund also formally exited from the board, and was replaced by a representative from a cement company in the Amsons Group. It is argued that the 2nd respondent is no longer a State corporation, within the meaning of the State Corporations Act, as the Government no longer holds a controlling interest in it. The 1st respondent avers that section 2 of the Public Procurement and Asset Disposal Act, defines a public entity, and the 2nd respondent no longer fits in that definition. It is further argued that the decision-making authority has shifted from the State, to the board of Kalahari Cement Limited and Amsons Group, which has materially and irreversibly altered the capacity of the respondents to comply with the impugned judgement. 12.The 1st respondent further avers that 3 years have lapsed since the submission of the tender, in May 2023, and the technical and financial assumptions underpinning it are no longer current, as there have been material fluctuations in the materials and components. He also avers that the regulatory licensing requirements, administered by the Energy and Petroleum Regulatory Authority and the National Construction Authority, and the grid connection arrangements with the Kenya Power and Lighting Company PLC, have also undergone changes. It is further averred that the bills of quantities that ought to have been prepared have not been finalised, and their finalisation cannot be completed within the timelines contemplated by the impugned judgement. 13.The 1st respondent avers that the respondents would suffer prejudice, if the judgement is not set aside, and if they are compelled to comply with the orders, whose enforceability is in question. It is further averred that whatever prejudice that the applicant stands to suffer would be compensable in damages. 14.Several documents have been attached to the affidavit of the 1st respondent, in support of the positions taken by the respondents in the matter. They include a copy of the tender document, dated May 2023, in respect of tender No. EAPCPLC/RFP/009/2023; a copy of the decision of the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, of 29th July 2024; a copy of the judgement of the court, rendered herein on 7th May 2025; a copy of the ruling of the court, on contempt of court, rendered herein on 15th December 2025; a copy of the notification of intention to award tender, dated 15th December 2025; a copy of a document on the bank transfer of Kshs. 250,000.00, dated 12th March 2026; a copy of a letter, from the Advocates for the respondents, to the Advocates for the applicant, dated 7th April 2026, accepting the bank guarantee, obtained by the applicant; a copy of a notice, issued and published by Kalahari Cement Limited, relating to exemption from mandatory takeover, dated 12th November 2025; a copy of a notice of the Capital Markets Authority approval exempting mandatory takeover offer, dated 4th December 2026; a copy of a list of the shareholding in the 2nd respondent, as at 13th December 2025; a copy of a notice of appointment of 2 new directors, to the board of the 2nd respondent, and the exit from the board of 2 directors representing the State, dated 20th February 2026; a copy of a notice of appointment a new director to the board of the 2nd respondent, and the exit from the board of a director representing the National Social Security Fund, dated 10th April 2026; and a copy of a legal opinion, given to the respondents, by M&E Advocates LLP, dated 28th April 2026. 15.The applicant reacted to that application, vide an affidavit that was sworn by its Chairman and Chief Executive Officer, Mr. Berjeesh Dady Suty, on 22nd May 2026. He avers that the application was frivolous and in bad faith. It is averred that some of the compliances, with the orders of the Public Procurement Administrative Review Board and the court, came long after the new management had taken over. The respondents prevaricated, with respect to issuing the applicant with the notification of intention to award tender, and the same was furnished on 4th February 2026, only upon court intervention. The respondents also prevaricated over the matter of the contract performance guarantee, and the same was accepted after a number of court appearances. It is further averred that the respondents had intimated, on 7th April 2026, that they had initiated the process, only to backtrack upon a new Judge taking over the matter. It is asserted that the 1st respondent remains a contemnor and a convict, and should have no right of audience before the contempt is purged. The ruling on contempt of court was delivered on 15th December 2025, yet it took the respondents over 6 months for them to move the court for the review orders. The decree was passed on 7th May 2025, yet no appeal or review was sought of that judgement timeously. When notification of tender was being send on 4th February 2026, a new board of directors had taken over, and the new ownership was effective, but section 135(4) of the Public Procurement and Asset Disposal Act does not apply. The bank contract guarantee was given on 24th March 2026, the change of ownership had happened and the board of directors had changed. 16.It is asserted that it was the respondents who applied to the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, for extension of time within which to issue the notification of award of the tender, and it cannot now be argued that the tender period had expired. It is averred that the change of ownership or shareholding of a company does not defeat the rights of a creditor, neither does it absolve the new owners from the existing liabilities of the company. It is also averred that due diligence before the new owners took over would have established the pre-existing decrees of the court and liabilities attaching to the respondents, and the respondents cannot in law be allowed to shirk responsibilities, on account of the newness of the board of directors. 17.Attached to that replying affidavit are several documents, some being the same as those annexed to the application by the 1st respondent. There is a document, from the bank, evidencing payment of Kshs. 250,000.00, dated 12th March 2026; there is the letter, dated 15th December 2025, from the 2nd respondent, to the applicant, of intention to award the tender, which was received on 4th February 2026; there is a copy of the same letter, of 15th December 2025, but without the date stamps embossed; there is a copy of a letter, dated 18th February 2026, from the applicant, addressed to the 1st respondent, accepting the tender; there is an insurers contractors performance bond, dated 19th February 2026, issued to the applicant, with respect to the tender; there is a letter, from the 2nd respondent, dated 5th March 2026, rejecting the performance bond issued to the applicant, dated 19th February 2026; there is a performance guarantee, by a bank, in favour of the applicant, dated 23rd March 2026, addressed to the 2nd respondent; there is a letter of 7th April 2026, from the Advocates for the respondents, accepting the performance guarantee dated 23rd March 2026, and intimating that the process of getting the contract signed were underway; there is an order of the court, of 17th March 2026, discharging the respondents from liability on costs; and there is the ruling delivered herein on 15th December 2025, convicting the 1st respondent of contempt of court. 18.Directions were taken, on 2nd June 2026, for canvassing of the application, by way of written submissions. Both sides have complied, by filing their respective submissions. 19.Those by the respondents are dated 5th June 2026. They identify 6 issues for determination, which turn on whether the court retains jurisdiction to re-visit or vary its orders, where supervening facts have rendered compliance unlawful, impracticable and impossible; whether a contract can be lawfully executed in light of lapse of the tender validity period, under section 135(4) of the Public Procurement and Asset Disposal Act; whether the court can take into account substantial changes in the ownership, governance, procurement status and market conditions affecting implementation of the tender; whether public interest favours enforcement of the existing order; whether the contemnor has audience; and costs. The decisions in Kariuki vs. Kiambu County Assembly & 3 others [2026] KECA 1049 (KLR); Okoiti & 2 others vs. Attorney General & 7 others [2020] KECA 589 (KLR); Niazsons (K) Limited vs. China Road & Bridge Corporation (Kenya) [2000] KCA 198 (KLR); Republic vs. Public Procurement Administrative Review Board & another Rentco Africa Limited (Ex parte) [2022] KEHC 12978 (KLR); Kwanza Estates Limited vs. JKUAT [2024] KESC 74 (KLR); Akber Abdullah Kassam Esmail vs. Equip Agencies Ltd & 4 others [2014] KECA 627 (KLR); and Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR) are relied upon. 20.The written submissions by the applicant are dated 18th June 2026. The said submissions turn on the delay in the bringing of the application, to review a judgement delivered on 7th May 2025; no appeal or review having been brought against the determination of the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, which gave rise to the mandamus order of 7th May 2025; sitting and waiting for time to lapse so as to defeat the award of the tender; the respondents taking contradictory positions, in asserting that the 2nd respondent was no longer a public entity, in respect of which the Public Procurement Administrative Review Board could exercise jurisdiction, and asserting that the tender, the subject of the proceedings, had lapsed by effluxion of time; the issues around the 2nd respondent being a private entity were not raised when the matter was before the Public Procurement Administrative Review Board on 29th July 2024 and the court on 7th May 2025; the matter of the liabilities and assets of the 2nd respondent, at the point of change of ownership, and disclosure of the judgement herein to the new owners; and defrauding creditors or evading lawful decrees of the court. The decision in HC Misc. Application No. 257 of 1983, Nairobi Kura Mbae vs. The Land Adjudication Officer Chuka & another is cited. 21.The application seeks review, setting aside, vacating, discharge or variation of the judgement of 7th May 2025. Based on the material that has been presented by the respondents, who are the movers of the motion, there would be only 1 issue for determination, and that is whether a case has been made out for grant of the orders sought. 22.The respondents advance 3 distinct arguments in their quest. The first is that the tender validity period had lapsed, by the time the determination of the Public Procurement Administrative Review Board and the mandamus order on it were made, and a mandamus order could not issue to compel performance of an act prohibited by statute. The second is that the 2nd respondent was no longer a public entity, to which the Public Procurement and Asset Disposal Act could apply, following changes in its shareholding and governance. The third is that a considerable period of time had lapsed, between submission of the tender and when compliance with the mandamus order was being compelled, through the contempt orders of 15th December 2025, which means that prices of equipment and commodities had changed, and so had the applicable regulatory framework. 23.Before I analyse the matter on the basis of those 3 arguments, advanced by the respondents, let me first consider the matter of review, setting aside, vacating, discharge and variation of orders and decrees, for the prayers in the application invite me to grant orders along those lines. There could be jurisdiction issues around that. There could also be questions of propriety of grant of the prayers sought. That would call for disposing of those issues first, before I get into the merits of the application. What is targeted for review, setting aside, discharge, vacating, variation and reversal is the judgement that this court, presided over by Aburili J, delivered on 7th May 2025. The issue should be whether that judgement would be available for review, setting aside, discharge, vacating, varying or reversing, and, if it would, on what basis. What would be the principles applicable in whichever case. 24.The starting point should be with what each of these orders entail. Although these terms are sometimes used loosely, and interchangeably, they are not synonymous in law, for they describe different remedies, available under different circumstances, and have different legal consequences. 25.Setting aside a judgement or decree means to nullify it, so that it ceases to have legal effect, usually because of some procedural defect, or because justice requires that the matter be re-opened. The common grounds, upon which a judgement or decree may be set aside, include lack of service or proper service of summons, irregular entry of judgement, fraud, mistake, inadvertence or excusable error, denial of a fair hearing and existence of a defence raising triable issues. The effect of setting aside is that the parties are restored to the position that they were in before the judgement was entered, and the matter may proceed for hearing afresh. The leading local authorities on this are Shah vs. Mbogo [1967] EA 116, Patel vs. EA Cargo Handling Services Limited [1974] EA 75 and James Kanyita Nderitu vs. Marios Philotas Ghikas [2016] eKLR [2016] KECA 470 (KLR). 26.Reversal of a judgement is an appellate remedy, available upon an appellate court concluding that the trial court was wrong, and substituting the decision of the trial court with its own. A reversal would occur, or be made, where the law was wrongly applied, the evidence did not support the findings, the trial court misdirected itself and the court lacked jurisdiction. One distinction, between setting aside and reversal, is that reversal is not primarily concerned with procedural defects, but the correctness of the decision the subject of the appeal. Where, for example, the appellate court finds that the trial court misunderstood the law, when it entered judgement in favour of the person claiming, it would reverse that judgement, and, depending on the circumstances, it may substitute it with its own, based on the applicable law. See Mbogo vs. Shah [1968] EA 93 and Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123. 27.With respect to vacating a judgement or decree, the term “vacate” would mean to render void or to cancel, and, in many common law jurisdictions, it would be substantially similar to set aside. However, in the Kenyan practice, “vacate” is, apparently, used commonly with respect to vacating orders, warrants, stays, ex parte proceedings and judgments entered irregularly. A court order that states that a judgement has been vacated would mean that that judgement is no longer operative. Therefore, the legal effect of vacating a judgement is indistinguishable from setting the judgement aside. 28.The Kenyan legal landscape has not developed a standalone doctrine for vacating a judgement, comparable to the doctrines of review, setting aside or appeal. When the courts in Kenya talk of vacating a judgement, the jurisdiction exercised would be that to set aside or review the judgement, or to declare it a nullity for want of jurisdiction or in exercise of some express statutory power. On account of that, the case law to support exercise of power by a court to vacate its own judgement, would be found under the jurisprudence of review and setting aside. 29.A central principle, used by Kenyan courts to vacate judgements, is functus officio, that is that once a court delivers a final judgement, it cannot thereafter re-visit the merits of the case, except through recognised procedures, such as review or correction of clerical errors, as was discussed in Odinga vs. Independent Electoral & Boundaries Commission & 3 others[2013] eKLR [2013] KESC 8 (KLR) and Telkom Kenya Ltd vs. Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd)[2014] eKLR [2014] KECA 600 (KLR), where it was explained that a court, which has finally determined a matter, cannot simply re-open it because it has changed its mind, it must derive authority from statute or a recognised jurisdiction such as review. The principle of functus officio, would, therefore, be a hurdle in seeking to vacate a judgement. 30.The other approach that may be adopted, by the court, to re-visit its own judgement, would be review, whose effect could be to vacate the judgement. It was warned, in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), that a review ought not be an appeal in disguise. A court cannot vacate its own judgement merely because it now believes that it may have been wrong, for where the complaint goes to the correctness of the decision, then the appropriate remedy would be appeal, for a judgement can only be re-visited on recognised review grounds. The principle, from National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), then is that the power to vacate a judgement is not inherent and unrestricted. Benjoh Amalgamated Ltd & another vs. Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Benjoh Amalgamated Limited vs. Kenya Commercial Bank Limited & another [2024] KECA 593 (KLR) also discussed the limited circumstances under which a court may re-visit concluded decisions, and emphasised finality in litigation, stressing on the court not endlessly reopening its own judgements, except where jurisdiction is expressly conferred by statute. 31.The other incidence would be with respect to null judgements, with regard to which the court could exercise the power to vacate them. Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), did not expressly deal with the subject, but its famous statement, that jurisdiction is everything, lays a foundation, upon which the courts can hold that judgements entered without jurisdiction, would be nullities, and may be set aside or vacated by the court which pronounced the judgement. In such a case, the court, vacating such a judgement, would not be reviewing the judgement, or exercising an appellate jurisdiction over it, but merely recognising that no valid judgement ever existed. Kenyan courts largely follow MacFoy vs. United Africa Company Limited [1961] 3 All ER, where it was declared that where a judgement is founded on a jurisdictional defect, rendering it void ab initio, the court may vacate it or set it aside, because it would be a nullity. 32.The vacating jurisdiction, if the phenomenon may be described as such, may be exercised in Kenya in the following circumstances. One, with respect to irregular judgements, as explained in James Kanyita Nderitu vs. Marios Philotas Ghikas [2016] eKLR[2016] KECA 470 (KLR), where an irregular judgement, such as a judgement entered without service, may be set aside or vacated ex debito justitiae, simply because it was improperly obtained. Two, in exercise of the review jurisdiction, as discussed in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), Nyamogo & Nyamogo Advocates vs. Kogo [2001] EA 173 and [1997] KECA 71 (KLR), where the court may effectively vacate part or all of its judgement where review grounds are established. Three, for lack of jurisdiction, based on Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), and the succession of cases that followed it. 33.The term discharge is used to refer to different things, with respect to judgements and orders in civil cases, and it is also used in criminal practice. 34.With respect to judgements, it does not carry the same meaning with setting aside or vacating the judgement. Rather, it is used with reference to a reason for relief from a judgement. The fact that a judgement has been discharged, is a ground for seeking relief from that judgement. A party may be relieved from a final judgement, if the same has been satisfied, released or discharged. It is about being released or excused from performing the obligations under the judgement. That release, or being excused from performing the obligations to the judgement, or settling the judgement, means that the judgement is no longer enforceable, on account of that release or discharge. It does not erase the judgement, but it can be used as a reason to have the judgement set aside or stayed. The debt would not stand cleared, for example, for it would be merely excused or waived. 35.Discharge is different from satisfaction. Discharge refers to release from an underlying obligation or a debt, not because the debt is settled or paid, but discharged, on account of the operation of the law. Satisfaction happens where the amount owed is in fact paid, to clear the debt, and, thereby settle or satisfy the judgement. Once the debt is paid, the judgment would be satisfied, and become unavailable for enforcement. Discharge and satisfaction, are related, but different, for both render the judgement unenforceable, but for different reasons, one releases the debtor from the debt or the obligation to settle it, in the other, the debtor actually pays off the debt. 36.Discharge of a judgement does not have the same effect as setting it aside. Both have the same effect or result, of rendering the judgement unenforceable. 37.Discharge releases the judgement-debtor from the debt or obligation, by making the debt legally uncollectible forever or permanently, and by removing the obligation. It effectively kills the debt or the obligation to satisfy the judgment, so that the debtor is released from the obligation to settle or satisfy it. That, however, leaves the judgement intact, until the discharge is used as a basis, through a formal application, for vacating the judgement, by having it declared void on account of the discharge. Satisfaction has the effect of erasing the debt and the judgement, although there may still be need to place evidence of the satisfaction on the court record, for a formal discharge from the obligations of the judgement. 38.Discharge of an order and discharge of a judgement do not have the same meaning. Discharge of a judgment has the effect of extinguishing the debt or obligation, which would have the effect of barring the creditor from enforcing the debt or the obligation. The discharge of an order has the effect of the order ceasing to have effect, and the subject of the order being no longer bound by its terms. Discharge of an order is common with discharge of injunctive orders. An injunctive order is discharged, when the court removes it, by lifting the legal restraint. Such discharge could be on account of material non-disclosure, failure to prosecute or delay, material change in circumstances, abuse of the order or its oppressive effect, loss of the substratum of the suit and injustice or inequity. 39.Setting aside of a judgment has the effect of killing or voiding it, without voiding the debt or obligation. The judgement may be voided, vacated or set aside on account of some legal defect, such as lack of jurisdiction, fraud, misrepresentation, misconduct, clerical error or mistake, or entry by default. The setting aside or voiding of the judgement completely erases it from the record, so that its treated, thereafter, as if it never existed. However, the setting aside or vacating of a judgement does not have the effect of setting aside, vacating or erasing the debt or the obligation, which was the subject of the suit and the judgement. Upon the judgement being vacated or set aside, there would still be room for the party to start the process afresh. 40.The primary legal avenues for varying a court order or judgement are section 80 of the Civil Procedure Act, Cap. 21, Laws of Kenya, and Order 45 of the Civil Procedure Rules, with respect to final decrees and orders where no appeal has been preferred; sections 1A, 1B and 3A of the Civil Procedure Act, which state the inherent powers of the court and the Oxygen Principles, which allow a court to re-visit its own interlocutory orders to serve the ends of justice; and varying a judgement on appeal. See Kibogy vs. Chemweno [1981] eKLR[1981] KECA 49 (KLR), Njeri Onyango vs. Patrick Musumba [2005] eKLR [2005] KEHC 723 (KLR) and Waithira vs. Mwangi [2025] KEHC 12232 (KLR). 41.The principles governing ordinary review, under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, are discussed here below, and, therefore, I shall not dwell much on them here. I shall, instead, discuss the principles relating to varying interlocutory orders. The principles here are broad, for the court is not restrained by the doctrine of functus officio, that is the principle that the court cannot re-visit a final decision, when dealing with an interlocutory order. The court has inherent power, under sections 1A, 1B and 3A of the Civil Procedure Act, or as may be stated in other statutory instruments, to vary or discharge its own interlocutory orders, with the aim of facilitating a just, expeditious, proportionate and affordable resolution of disputes. The discretion would also be used to prevent injustice or absurdity. 42.The rationale appears to be that whereas the final judgement of a court can only be challenged on limited review grounds or on appeal, its interlocutory orders are readily open to variation. The system aims at balancing the need for finality of litigation, with the inherent power of the court to ensure justice and prevent procedural unfairness. However, it would appear that variation in specialised proceedings, like judicial review, is strictly prohibited, going by the decision in Republic vs. Clerk County Council of Meru [2012] eKLR [2012] KEHC 5430 (KLR). 43.The principles for review of judgements have been settled in a number of decisions, where the courts have interpreted section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. Swai vs. Kenya Breweries Limited [2014] eKLR[2014] KECA 883 (KLR) affirmed that the review jurisdiction is statutory and limited, and that review may only be granted on the grounds specified in Order 45 of the Civil Procedure Rules, being discovery of new and important evidence, error apparent on the face of the record and any other sufficient reason. The court warned against expanding review into a general power to re-consider judgements. Benjoh Amalgamated Ltd & another vs. Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Benjoh Amalgamated Limited vs. Kenya Commercial Bank Limited & another [2024] KECA 593 (KLR) emphasise that review is an exceptional jurisdiction, designed to prevent obvious injustice, where statutory grounds exist. They establish the principle that review is not intended to give a losing party a second opportunity to re-argue or re-open the merits of its case. 44.In National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), it was held that a review may be granted whenever it is necessary to correct an apparent error on the face of the record or omission on the part of the court, which error must be self-evident, so as not to require any elaborate argument. It was also asserted that a review is not an appeal in disguise. The principle, stated in that decision, was that a court may not review is judgement merely because the court arrived at a different conclusion from what was desired by the party, or the court may have misinterpreted or misunderstood the law, or another Judge could have arrived at a different result. It was pointed out that such complaints merit being raised on appeal rather than review. 45.Nyamogo & Nyamogo Advocates vs. Kogo [2001] EA 173 elaborated on the meaning of an error apparent on the face of the record, and drew the distinction between a mere erroneous decision and an error apparent on the face of the record. The principles, stated in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR[1997] KECA 71 (KLR), were echoed, that an apparent error must be obvious, self-evident and immediately identifiable from the record, and that where the alleged error requires lengthy legal arguments, or examination of conflicting authorities, or interpretation of disputed legal arguments, the matter would be more suitable for appeal rather than review. 46.In Official Receiver and Liquidator vs. Freight Forwarders Kenya Limited [2000] eKLR [2000] KECA 19 (KLR) addressed review based on newly discovered evidence, and established the principle that the applicant must show that the allegedly discovered evidence is material, it was not within the knowledge of the applicant as at the time the matter was being heard and the determination made, and the evidence could not have been obtained despite exercise of due diligence before the judgement. The point emerging was that a party cannot obtain review merely because they failed to produce available evidence at trial. 47.Sardar Mohamed vs. Charan Singh Nand Singh & another [1959] EA 793 is on any other sufficient reason. It established that review is not unlimited. It was held that that phrase ought to be construed with the framework of the other 2 reasons or grounds, that is error apparent on the face of the record and discovery of new evidence. The effect of that latter position is to prevent review from becoming a substitute for appeal. 48.The principles governing review, which emerge from the decisions above, are that a judgement or decree may be reviewed only where the applicant proves discovery of new and important matter of evidence, by showing that the evidence is new, material and could not be produced earlier despite due diligence; or error apparent on the face of the record, which error must be clear, obvious and self-evident; or other sufficient reason, which must be compelling and generally analogous to the first 2 grounds; the application is made promptly, without unreasonable delay; and the review is not an appeal, for a party cannot use review to challenge findings of fact, interpretation of evidence and legal conclusions merely because they are believed to be wrong. 49.It would appear that review, as a remedy, may not be available, with respect to specialised proceedings, as such are strictly guided by the provisions of the statutes providing for them. Republic vs. Clerk County Council of Meru [2012] eKLR [2012] KEHC 5430 (KLR) suggested that variation of judicial review proceedings or determinations may be strictly prohibited. The court, in that matter, declined to review set aside, vacate or substitute an order allowing a motion, in judicial review proceedings, on grounds that the applicant could not rely on section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, to invoke the jurisdiction of the court, for judicial review is a special jurisdiction, and the provisions of the Civil Procedure Act and the Civil Procedure Rules, except for order 53, did not apply. 50.From what I have discussed above, it would emerge that there are important conceptual distinctions between these remedies or reliefs, of setting aside, vacating, reversal, discharge and review. Setting aside is by the court which made the order or rendered the judgement, based on a procedural defect or other sufficient reason for re-opening the case, and its effect would be that the judgement would cease to operate and the proceedings may re-start. Reversal is by an appellate court, where the judgement was wrong on the law, or fact, or both, and the appellate court could substitute the judgement with a different outcome. Vacating a judgement would be by the court with jurisdiction over the matter, whether original or appellate, where the main question would be whether the judgement ought to be cancelled or rendered ineffective, on account of some defect in the process, and the judgement would be rendered void or unenforceable. Review is by the same court passing the judgement, where there is error on the court record, or discovery of new important evidence, or other related reason, and the judgement may be varied or vacated. Consequently, these cannot be lumped together, and sought as an omnibus prayer. 51.Based on the above discussion, a majority of the remedies sought herein would not be available for granting, and it would appear that only 1 or 2 of them would be available for consideration. 52.Setting aside the judgement would not be available, for it depends on some procedural defect, or is sought where there is need to re-open the matter. In this case, no procedural defect has been alleged or demonstrated, and the respondents do not seek a re-opening of the case. Setting aside of a judgement is governed by Order 10 rules 6 and 10 of the Civil Procedure Rules, with respect to non-appearance and default of defence, upon being served. The issue of non-service has not been raised in this case, and the application is not founded on non-service or defective service. 53.In any event, as ruled in Republic vs. Clerk County Council of Meru [2012] eKLR [2012] KEHC 5430 (KLR), Order 10 rules 6 and 10 of the Civil Procedure Rules are of no application to proceedings under Order 53 of the Civil Procedure Rules. The proceedings under Order 53 are said to be sui generis, governed by their own procedure, independent of the other provisions of the Civil Procedure Rules. The language often used is that Order 53 is self-contained. It has its own rules on service, at Order 53 rules 3(3)(4) and 6, with respect to who is to be served and with what. Discretion is given to the court to direct on who is to be served, and to hear parties even if they are not served, and there is a requirement to satisfy the court of service, by filing an affidavit, setting out who ought to be served. 54.Regarding the re-opening of the matter, that issue would usually arise, where setting aside of a judgement, entered under Order 10 rules 6 and 10 of the Civil Procedure Rules, comes up for consideration. Upon the default judgement being set aside, the matter would be re-opened, so that the party, benefiting from the setting aside order, gets to file pleadings or responses, and to be heard on the merits. I reiterate, that Order 10 rules 6 and 10 of the Civil Procedure Rules does not apply to these proceedings, and, in any event that issue has not been raised by the respondents in the instant application. The issue is not that there was a default judgement, which ought to be set aside, to pave way for the re-opening of the matter. The presumption is that the judgement was regular, hence the issue of setting it aside would not arise, as, as a matter of principle, the courts are shy about setting aside regular judgements, except for excusable error or inadvertence. See Mbogo & Another vs. Shah [1968] EA 93. However, these are not the issues here. 55.With respect to reversal of the judgement of 7th May 2025, again that relief would be unavailable in these proceedings. As discussed above, reversing a judgement is an appellate jurisdiction, which follows a conclusion, by an appellate court, that the trial court was wrong. As discussed above, a reversal is not the same as setting aside, for the setting aside relates to procedure, while the reversal would largely turn on merits. I am not sitting as an appellate court over the decision of 7th May 2025. That decision is of the High Court, made by a Judge with a jurisdiction concurrent to mine. I cannot possibly purport to sit on judgement of a fellow Judge of the High Court. That judgement can only be challenged on appeal, where the reversal sought would be available. 56.Vacating a judgement is not really something that the statutes provide for, and it is more a matter of practice and convention than anything else. It is commonly used with respect to irregular proceedings, orders, warrants, stay, ex parte proceedings and irregular judgements. The issues raised here do not relate to irregular court proceedings. The respondents do not allege that the court conducted irregular proceedings, which led up to the judgement of 7th May 2025, thereby robbing it of a sound foundation. The issue that the tender validity period had expired could marginally be an issue about irregularity. However, the manner in which the court handled the proceedings has not been demonstrated to be irregular. The issue of the tender validity period formed party of the merits of the case before the court, which the respondent’s had an opportunity to canvass, for the court to make a determination on whether or not that period had expired. The fact that that issue was not addressed in the judgement, cannot make the proceedings irregular, for it would also depend on whether the parties made that issue an issue for trial. Being a matter that ought to go into the merits of the judgement, the way to address it ought to have been by way of appeal, rather than vacating the judgement on that ground or on review. 57.With regard to review, Republic vs. Clerk County Council of Meru [2012] eKLR [210] KEHC 5430 (KLR) settled the question. Review would not be available for judicial review matters, for judicial review proceedings are sui generis, the procedure prescribed for it, in Order 53 of the Civil Procedure Rules, is uniquely of application only to judicial review proceedings, and not to any of the other processes prescribed under the other provisions of the Civil Procedure Rules, and, by extension, the judicial review proceedings are not subject to any of the other provisions of the Civil Procedure Rules, for Order 53 is self-contained. It would not be available, in the circumstances, in this case, for the purpose of reviewing the judgement of 7th May 2025. 58.In any event, even if it were to apply, none of the issues raised bring the matter within the parameters of section 80 and Order 45, with respect to error on the face of the record, discovery of new important evidence or any other sufficient reason. The respondents have not raised the issue of error on the face of the record. They have not pointed at any mistake or error, made by the court, with respect to the material that went into the impugned judgement. None of the 3 issues raised relate to discovery of new important evidence, which was not available at trial. One of the matters relates to an issue that could have been raised at trial; while the other is a development that arose after the judgment, which cannot be a matter of new evidence. The new important evidence must have been in existence at the time of trial, but undiscovered until after trial. Review has nothing to do with developments after the judgement, which alter the circumstances. Any other sufficient reason should be matters falling within that pattern. 59.The discretion to vary an order or decree stems from the inherent and review powers of the court, granted or saved under sections 1A, 1B, 3A and 80 of the Civil Procedure Act. The Oxygen Rules enable the court to focus on substantive justice, and eschew technicalities of procedure, which is much the same terrain covered by Article 159(2)(d) of the Constitution. This inherent power of the court is to be usually exercised during trial and at the point of making the decision. It would also be utilised where the court is determining an interlocutory application for setting aside, stay or review, or on appeal. It would not be something that the court would consider alone. The order or decree would be varied where it is demonstrated that a case has been made out for review or setting aside. It is discretionary, to be exercised based on the circumstances of each case. It could be of utility here, dependent on the relief that the facts of the case would support. 60.Subject to what I have concluded above, about the discretion to vary an order or decree, discharge would appear to be the only remedy which would be available for consideration, with respect to evaluating the instant application, regarding the 3 issues raised, that is: the consideration that the tender validity period had expired, would render the judgement invalid, hence incapable of execution; the changes in the ownership and governance of the 2nd respondent, having altered the circumstances of the corporation, in such a manner and to such extent as to make compliance with the judgement herein impossible, impracticable or not feasible; and the lapse of time, from the date the tender or bids were opened, have rendered the whole exercise untenable. 61.Let me now revert to the merits of the application, weighing whether the remedy of discharge, would be available, based on the principles that I have discussed above. I shall consider each of the 3 distinct arguments, advanced by the respondents, in turn. 62.The first in time is that a mandamus order cannot issue to compel performance of an act prohibited by statute. This argument is premised on section 135(4) of the Public Procurement and Asset Disposal Act, on the basis that a tender is valid for a certain period, and that a contract cannot be executed outside of that tender validity period. It is submitted that that provision is in mandatory terms, and it requires that a contract be signed within the contract period. 63.Section 135 of the Public Procurement and Asset Disposal Act, in its entirety, states:“ 135.Creation of procurement contracts(1)The existence of a contract shall be confirmed through the signature of a contract document incorporating all agreements between the parties and such contract shall be signed by the accounting officer or an officer authorized in writing by the accounting officer of the procuring entity and the successful tenderer.(2)An accounting officer of a procuring entity shall enter into a written contract with the person submitting the successful tender based on the tender documents and any clarifications that emanate from the procurement proceedings.(3)The written contract shall be entered into within the period specified in the notification but not before fourteen days have elapsed following the giving of that notification provided that a contract shall be signed within the tender validity period.(4)No contract is formed between the person submitting the successful tender and the accounting officer of a procuring entity until the written contract is signed by the parties.(5)An accounting officer of a procuring entity shall not enter into a contract with any person or firm unless an award has been made and where a contract has been signed without the authority of the accounting officer, such a contract shall be invalid.(6)The tender documents shall be the basis of all procurement contracts and shall, constitute at a minimum ...” 64.Section 135(4) does not state the validity period for a tender, for it only provides for execution of a contract between the successful tenderer and the procuring entity. It is only section 135(3) which makes reference to the tender validity period, in the context of the contract being signed within the tender validity period. The parties have not addressed me, in any meaningful way, on what the tender validity period entails, and what are its legal incidences. From the length and breadth of the Public Procurement and Asset Disposal Act, the only other provisions on it are in sections 87 and 88. Section 87(1) provides that notification of intention to enter into a contract should be given before “the expiry of the period during which tenders must remain valid.” Section 88 provides for extension of the tender validity period, by the accounting officer of the procuring entity. 65.So, what is the tender validity period? The Public Procurement and Asset Disposal Act does not define it. From my review of the case law, on public procurement, the courts have addressed issues around it. In Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Higawa Enterprises Limited [2017] eKLR and Republic vs. Public Procurement Administrative Board; Simba Pharmaceuticals Limited & another (Interested Parties) Ex parte Kenya Ports Authority [2018] eKLR [2018 KEHC 2021 (KLR), the court stated that the tender validity period goes to the root of the award of the tender, and it is a critical factor, in determining whether a tender was validly awarded or not. The Public Procurement and Asset Disposal Act does not also fix the tender validity period, leaving it to the procuring entity to determine it, and stipulate it in the tender documents for each specific tender. The period or duration, stipulated by the procuring entity, may vary, depending on the nature of the tender, or the goods or services being procured. 66.What I have gathered, from the decisions of the Public Procurement Administrative Review Board and of the courts that I have sampled, is that the tender validity period begins to run from the date of tender opening to a particular date, identified in the tender documents as the closing date. In the duration of the tender validity period, the bidder is legally bound by its offer, and cannot withdraw it or modify it. The period allows the procuring entity time to complete evaluation of the tender, to make an award of the tender, and the signing of the contract, before the period expires. It should not be confused with the period set for receiving bids. The tender validity period kicks in after the period for receiving bids has closed, and the tenders are opened for evaluation. The life of the tender is limited, and once the validity period lapses, it would be impossible to revive the period, or to award the contract, and the remedy would appear to be to start the tendering process afresh. 67.However, there is provision for extension of the tender validity, by the accounting officer of the procuring entity, as alluded above. Section 88 of the Public Procurement and Asset Disposal Act allows extension period of that period only once, for a maximum of 30 days, and the extension can only be done while the tender is still alive. See Republic vs. Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & another [2021] eKLR [2021] KEHC 8109 (KLR). The discretion, to extend the validity period, under section 88, belongs to the accounting officer of the procuring entity. The validity of a tender cannot be extended after the period has lapsed, because the legal basis for the tender no longer exists. That principle was affirmed in Kivuku Agencies vs. Kenya Airports Authority [2020] eKLR[2020] KECA 283 (KLR), where the court upheld a decision that a re-tender was justified because the validity of the original tender had lapsed. It was underscored, in Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Higawa Enterprises Limited [2017] eKLR[2017] KEHC 883 (KLR), that the power, granted to the accounting officer, under section 88, cannot be exercised to extend a tender whose validity period is unspecified or indeterminate. 68.The effect of filing a review, under section 167 of the Public Procurement and Asset Disposal Act, automatically suspends the procurement process, by dint of section 168 of the Public Procurement and Asset Disposal Act. It was stated, in Republic vs. Public Procurement Board Administrative Board; Simba Pharmaceuticals Limited & another (Interested Parties) Ex parte Kenya Ports Authority [2018] eKLR [2018 KEHC 2021 (KLR), that that suspension or stay of procurement proceedings, upon the filing of a review, includes that of the tender validity period, for it would be absurd to allow the validity period to expire, while a review is pending, as letting the period expire, would render any eventual decision of the Public Procurement Administrative Review Board meaningless. The period resumes once stay is lifted, upon determination of the review. The principle stated, in Republic vs. Public Procurement Board Administrative Board; Simba Pharmaceuticals Limited & another (Interested Parties) Ex parte Kenya Ports Authority [2018] eKLR [2018 KEHC 2021 (KLR), is that during the pendency of the review application, the tender validity period would be frozen, and would not count. 69.In addition to the power, given under section 88, to the procuring entity to extend the life of the tender once, the Public Procurement Administrative Review Board also has inherent or residual power, under section 173(b) of the Public Procurement and Asset Disposal Act, to direct a further extension against the validity period, to prevent its directions, to a procuring entity, being rendered useless. The Public Procurement Administrative Review Board may compel the procuring entity to extend the period, or it may itself order the extension. In Republic vs. Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & another [2021] eKLR [2021] KEHC 8109 (KLR), the Public Procurement Administrative Review Board directly extended the tender validity period for an additional 30 days, to ensure compliance with previous orders. 70.Upon determination of the review by the Public Procurement Administrative Review Board, and the matter is escalated to the High Court, by way of judicial review, the power to manage the tender validity period would change. The proceedings, at the High Court, do not lead automatically to a stop of the clock of the tender validity period. Instead, the High Court manages the situation, by way of exercise of its supervisory power, through judicial review. It may compel the Public Procurement Administrative Review Board to re- hear the matter, through a mandamus order, and to render a decision within a certain timeline. The court may also intervene to direct the process, to prevent injustice, by itself allowing extensions, where a procuring entity has acted in bad faith. In Republic vs. Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & another [2021] eKLR[2021] KEHC 8109 (KLR), it was held that the Public Procurement Administrative Review Board has wide discretionary powers, under section 173 of the Public Procurement and Asset Disposal Act, and authority to order an extension of the validity period more than once, exercised to prevent an accounting officer from misusing power to frustrate bidders. 71.So, what was the situation here? The 2nd respondent invited bids for the tender herein, vide advertisement, on 18th November 2022, with a submission deadline of 25th November 2022. 6 firms, including the applicant, were shortlisted, and invited, as pre-qualified bidders, on 17th April 2023, to tender, with a closing date of 4th May 2023, which was extended twice, with the last closing date being 23rd May 2023. The tenders were opened on 23rd May 2023, 5 bidders had submitted bids. The 5 bids were evaluated, and the applicant was declared the successful tenderer, vide a communication made on 11th September 2023. 72.A request for review was filed by one of the unsuccessful bidders, in Request for Review No. 65 of 2023, and a determination was made on 16th October 2023, nullifying the award and re-admitting the bid by the claimant. An order was made for the respondents to proceed with the procuring process within 14 days. A fresh evaluation was done, and an award was made to the applicant herein, on 30th October 2023. A Request for Review No. 94 of 2023 was subsequently filed, which was determined on 1st December 2023, setting aside the award of 30th October 2023, directing that the bid by the claimant be readmitted, and a fresh evaluation be done. That decision, in Request for Review No. 94 of 2023, was challenged in Milimani HCJR No. E140 of 2023, which was dismissed, according to the record before me. 73.An application was then made in Request for Review No. 94 of 2023, on 5th March 2024, for extension of the tender validity period, which was allowed, and the validity period was extended for 244 days, from 20th September 2023. On 8th April 2024, the 1st respondent sought, in Request for Review No. 94 of 2023, extension of the validity period by 30 days, and the request was granted on 24th April 2024, for 30 days, from the date of the decision, to enable completion of procurement process, whose effect was to extend the tender for 30 days from 20th May 2024. 74.On 24th June 2024, the respondents terminated the tender. That prompted the filing of Request for Review No. 61 of 2024, by the applicant herein, seeking the quashing of that decision to terminate the procuring process, and to have the respondents compelled to complete the procuring process, by making the award to the successful bidder. On 29th July 2024, the decision of 24th June 2024, terminating the tender was quashed, the respondents were directed to award the tender to the applicant in 7 days, the completion period was extended by 30 days, and a fine was imposed, of Kshs. 250,000.00. 75.The decision of the Public Procurement Administrative Review Board, of 29th July 2024, was not complied with, hence the instant proceedings were initiated, on 2nd September 2024, to compel compliance, through a mandamus order. Judgement was delivered herein on 7th May 2025, directing compliance with the decision of 29th July 2024, within 7 days, extending the validity period by 60 days. An application was filed, dated 1st September 2025, seeking citation of the 1st respondent for contempt of court, for failure to comply with the orders of 7th May 2025. A ruling was delivered on 15th December 2025, finding him in contempt. The matter awaits mitigation and sentence. 76.It was the respondents who had been commanded, by the order of the Public Procurement Administrative Review Board, to award the tender to the applicant, within 7 days, and the completion date was extended by 30 days. The respondents did not comply with the directive of 29th July 2024, and they cannot now be heard to argue that that the tender validity period lapsed, as it was not extended, after expiry of the 30 days, extended by the said directive of 29th July 2024. That order was directed at them, and it was their obligation to move for a further extension, by the Public Procurement Administrative Review Board or even the High Court, if it turned out that the time was not adequate for them, to complete the exercise. They took no action, from 29th July 2024, and allowed the time to lapse. The fact that they did not do anything, to avoid that period lapsing, meant that they intended to frustrate the successful bidder. 77.This court, on 7th May 2025, granted the mandamus order, to compel compliance with the orders of the Public Procurement Administrative Review Board, of 29th July 2024, and extended the tender validity period by 60 days, to facilitate compliance by the respondents. The respondents were aware of the judicial review proceedings, for I see, on the record, an affidavit of service, sworn on 22nd October 2024, indicating that the relevant court papers herein were served on 3rd September 2024, via the email address of the respondents, being info@eapcc.co.ke. There is another affidavit of service, of 7th March 2025, with respect to service of a hearing notice, dated, 6th February 2025, for a hearing scheduled for 17th March 2025. The record indicates that an Advocate, for the respondents, attended court on 4th February 2025, before Aburili J, but the said Advocate did not attend court thereafter, until judgement was delivered on 7th May 2025. The respondents did not file any papers in response to the application. 78.Based on the above, although the respondents were aware of the existence of the motion, they did not reply to it, and did not participate in its prosecution. They had the opportunity, in those proceedings, to raise the issue that they are now raising, about the tender validity period having expired. If they felt that the judgement of 7th May 2025 was made without jurisdiction or wrongly, they had a right to challenge it on appeal. They did not. Instead, they have waited for a whole year, from 7th May 2025 to 4th May 2026, to file the instant application raising these issues, which they ought to have raised in opposition to the substantive motion, prior to the delivery of the judgement on 7th May 2025. These arguments are coming too late in the day. 79.After the contempt proceedings were initiated, through the summons and the motion, dated 1st September 2025, the relevant court papers, on those applications, were served on the respondents, on 4th September 2026, through the same email address, info@eapcc.co.ke, going by the affidavit of service sworn on 19th September 2025. That time round, the respondents appointed an Advocate, who filed a notice of appointment of Advocates, dated 4th September 2025, and wrote to the court on 15th September 2025, seeking to peruse the court file. The 1st respondent then lodged into the court file a replying affidavit, sworn on 22nd September 2025. 80.In that reply, by the 1st respondent, the issue being now raised in the instant application, was not raised nor addressed, in reaction to the application for contempt, that is about the tender validity period of the subject tender having lapsed, and was not extended. Instead, the 1st respondent chose to dwell on not being aware of the judgement of 7th May 2025 until 9th May 2025; instructing one of his subordinates to award the tender to the applicant, within the 60 days, as directed in the judgement; and the budget for the 2nd respondent having had already been prepared and submitted before the judgement was delivered, hence the finances required for compliance with that judgement had not been provided for. 81.The application for contempt of court was canvassed by way of written submissions. The respondents lodged written submissions, dated 11th November 2025. In those submissions, only 2 issues were identified and addressed, relating to whether the respondents had knowledge of proper notice of the terms of the orders; and whether they acted in breach of the terms of the orders, and whether their conduct was deliberate. They did not raise the issue of the tender validity period having had expired as at the date the judgement was being delivered. 82.The court delivered its ruling, on the contempt application, on 15th December 2025. The issue of the tender validity period having lapsed, after 29th July 2024, was not addressed, in that ruling, and rightly so, as that issue was not raised by the parties. If it really was an important issue to the respondents, they ought to have raised it at that stage, for consideration by the Judge, in the ruling. 83.The conclusion, to be drawn, is that the issue of the tender validity period having had expired, by the time the mandamus order was being made, is an afterthought, and it is belatedly raised, for the proper place or time to raise it was when the substantive motion was being canvassed. There is evidence that the respondents were properly served with the substantive motion, and their Advocate attended court at some point, but they chose to stay away thereafter, and not participate in the proceedings. They cannot now re-open issues that they ought to have canvassed at that time. It is too late. 84.The position applies to the other 2 matters, relating to the changes in shareholding and governance of the 2nd respondent, on the one hand, and the lapse of 3 years from the date the bids opened in May 2023. These are issues that the respondents ought to have raised at the hearing of the substantive motion, and that of the contempt application. Raising such substantive issues at this stage is too late. I find it curious, that the respondents have not attempted to explain why they did not participate in the hearing of the substantive motion. They do not raise the issue of service of the substantive motion, upon them. They have also not sought to explain why these issues were not raised at the hearing of the substantive motion and at the contempt proceedings. 85.Perhaps, a little more should be said about the changes in the ownership and governance of the 2nd respondent. It is trite that, under Company Law, a company is a separate legal person distinct from its shareholders, and that it enjoys perpetual succession. A change in and of ownership, even from majority State ownership to minority State ownership, does not create a new legal entity. The company or corporation would remain the same juristic person, with the same rights and obligations. The Companies Act, Cap. 486, Laws of Kenya, recognises the company as having its own legal capacity to contract sue and to be sued. Contracts entered into prior to the change would remain enforceable. The rights accrued under those contracts would continue, and liabilities, already incurred, do not disappear merely because of ownership changes. The key question would be whether the legal entity itself has changed, and not whether its shareholders changed. 86.The courts addressed that issue in Salomon vs. A. Salomon & Co. Limited [1987] AC 22 and Victor Mabachi & another vs. Nurtun Bates Limited [2013] eKLR[2013] KECA 204 (KLR), where the principles that a company is a separate legal person from its shareholders, and that changes in ownership does not change the identity of the company, and that the company continues to own its assets, bear its liabilities, and remain subject to its contractual and legal obligations, were stated. See Arthi Highway Developers Limited vs. West End Butchery Limited & 6 others [2015] eKLR [2015] KECA 816 (KLR). In Victor Mabachi & another vs. Nurtun Bates Limited [2013] eKLR[2013] KECA 204 (KLR), the distinction, between the company and its shareholders and directors, was emphasised, and it was reinforced that obligations belong to the company itself rather than to the individuals behind it. What that would mean is that where shareholding, in a State corporation, reduces significantly, say from 100% to 30%, the company would still remain the same legal entity, unless there is a statutory re-structuring, merger, liquidation or transfer scheme. Existing contracts would generally remain binding. 87.Similarly, a court order binds the party against whom it was issued. If the company or corporation remains the same legal entity, despite shareholder and directorship changes, it would be obligated to comply with the court order, regardless of subsequent changes in shareholding and directorship. A company cannot avoid complying with a court order by arguing that its shareholders changed, or the Sate no longer controlled it, or its status as a State corporation was altered after the order was made. Unless the order is varied, set aside, stayed on appeal or becomes incapable of performance for legal reasons, compliance would remain mandatory. In this case, however, from the foregoing paragraphs, it has not been established or demonstrated that the decree herein is available for variation, setting aside, stay or has become incapable of performance. 88.As a general rule, a reduction in State shareholding, from a controlling interest to a minority interest should not affect the validity or enforceability of contracts executed earlier, nor should it excuse compliance with existing court orders, because those obligations belong to the corporate entity itself. What may change are the future regulatory status and Government obligations of the corporation, not its pre-existing contractual or judicial liabilities. 89.The order, of the Public Procurement Administrative Review Board, said to have been disobeyed, and which prompted the proceedings for the mandamus order herein, was made on 29th July 2024, long before the changes, in the ownership or shareholding of the 2nd respondent, began in August 2025. The respondents had a whole year to comply, with the said order or directions of 29th July 2024, before the process of effecting changes in the ownership of the 2nd respondent began in earnest in August 2025. The mandamus order itself was made on 7th May 2025, well before the process of making those changes began. The 60-day extension, of the tender validity period, granted by the Judge, was to run up to or about 7th July 2025, before the process of effecting the changes in the 2nd respondent began in August 2025. There was time, therefore, for the respondents to comply between 7th May 2025 and 7th July 2025, before the process of changing the shareholding and directorship of the 2nd respondent could begin in August 2025. The orders, that the mandamus and the contempt proceedings targeted, and the mandamus order itself, were disobeyed long before the changes happened or took effect, and the same cannot be used as a pretext to avoid meeting the consequences of disobedience. 90.The respondents are, clearly, grasping at straws. The act or omission, which constitutes the contempt of court, for which the 1st respondent was convicted, dates back to a period before the changes pleaded happened, and the fact of the changes is only being played at as an excuse to avoid being sanctioned, for the failure to meet the judicial obligations, imposed by the orders of the court 91.The argument, about the lapse of 3 years, from the date of the opening of the bid, as having an effect on the procurement process, and providing a basis for discharging the respondents from the obligation to obey the order, hence justification for vacating the judgement, is untenable. The answer to that argument lies with Republic vs. Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & another [2021] eKLR [2021] KEHC 8109 (KLR), where the court emphasized the need to prevent a procuring entity, from denying a successful bidder of its award, by dilatory tactics. The 3-year delay was not caused by the applicant, but by the dilatory tactics of the respondents. There is evidence of utter impunity by the respondents. Despite extension of the tender validity period, by the Public Procurement Administrative Review Board, on 29th July 2024, the respondents made no attempt to comply within the extended period of 30 days, neither did they attempt to apply for extension of that period beyond 30 days, to enable them comply. The court, on 7th May 2025, also extended that period by another 60 days, but to no avail. 92.I am not persuaded that the 3 arguments, advanced by the respondents, provide a basis for discharge of the judgement of this court, of 7th May 2025, for the reasons that I have discussed above, to obviate compliance with the mandamus order made therein. The instant application, to my mind, based on the above, and the general conduct of the respondents, both before the Public Procurement Administrative Review Board and this court, has been filed in an attempt to avoid compliance with the orders made in that judgement. 93.In the end, I am not persuaded that a case has been made out, for grant of the orders sought in the application, dated 4th May 2026. The said application is for dismissal, and I hereby dismiss the same, with costs. To progress the matter, I do hereby direct that the 1st respondent shall appear in open court, physically, on 28th July 2028, at 11.30 AM, for mitigation and sentencing. It is so ordered. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 21ST DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Mwaura, instructed by Karuru Mwaura & Company, the Advocates for the applicant.Mr. Anjichi, instructed by C&O Advocates LLP, the Advocates for the respondents.