[2022] KEHC 18057 (KLR)

Tsavo Oilfields Limited v Public Procurement Administrative Review Board & another (Application E057 of 2022) [2022] KEHC 18057 (KLR) (Judicial Review) (22 July 2022) (Judgment)

Neutral citation: [2022] KEHC 18057 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E057 of 2022

J Ngaah, J

July 22, 2022

i. The 2nd respondent’s preliminary objection was upheld. ii. Application was dismissed. iii. No order as to costs.

Between

Tsavo Oilfields Limited

Applicant

and

Public Procurement Administrative Review Board

1st Respondent

The Accounting Officer Kenya Electricity Generating Company

2nd Respondent

Judgment

1. The motion before court is the applicant’s motion dated 9 June 2022 filed on the strength of article 159 of the Constitution, sections 1A,1B, 3A and 80 of the Civil Procedure Act, Order 5 Rule 1 (6) and (3), order 51 rues 3 and 4 and order 53(3) of the Civil Procedure Rules.

2. The prayers have been framed as follows:1. That the honourable court be pleased to grant an order of certiorari to move the High Court to remove into this Court and quash the decision of the 1st respondent through its decision No 39 of 2022 dismissing the applicant request for review letter.2. That the honourable court be pleased to grant an order of prohibition, prohibiting the 2nd respondent from entering into any contract in regards to the award of Tender No KGN-GDD-03-2022 For Supply of Drilling Rock Bits and Stripper Rubbers for Geothermal Development Division (Tricone Roller Bits and Stripper Rubber.3. That the honourable court be please (sic) to allow the request for review by the applicant and the 2nd respondent be compelled to award the aforesaid tender to the applicant;4. That in the alternative, the honourable court be pleased to issue an order compelling the 2nd respondent to undertake fresh evaluation of the tender for the Supply of drilling Rock Bits and Stripper Rubbers For Geothermal Development Division (Tricone Roller Bits, PDC Bits and Stripper Rubber), KGN-GDD-03-20225. That this honourable court be pleased to grant a fresh appeal by the 1st respondent on the merits of the request for review filed by the applicant.6. That the cost of the suit be awarded to the applicant.”

3. The application is based on a statutory statement dated 26 May 2022 and a verifying affidavit sworn by the applicant’s Chief Executive Officer on even date.

4. According to the applicant, the 2nd respondent invited bidders for tender for “Supply of Drilling Rock Bits and Stripper Rubbers for Geothermal Development Division (Tricone Roller Bits, PDC Bits and Stripper Rubber), KGN-GDD-03-2022”. This was on 11 January, 2022.

5. The applicant submitted its tender in accordance with the requirements in the tender document. However, on 19 April 2022, it received a letter of regret informing it that the tender had been awarded to another party and that the applicant’s bid was disqualified for failure to meet certain requirements in the tender document.

6. Being dissatisfied with the 2nd respondent’s decision, the applicant applied for a request for review before the 1st respondent on 4 May 2022.

7. The request for review was, however, dismissed on a preliminary point, which is that it had been filed out of time. According to the 1st respondent, the request for review ought to have been filed by 3 May 2022 but the applicant filed it on 4 May 2022. It, therefore, concluded that it did not have jurisdiction to entertain the request for review that had been filed out of time. The 1st respondent’s decision was delivered on 24 May 2022.

8. It is as a result of this decision that the applicant has filed the present proceedings arguing, inter alia, that the decision overlooked the fact that 3 May 2022 was a public holiday and therefore the next available date by which the applicant ought to have filed its application was on 4 May 2022. In dismissing the applicant’s request for review it was argued that the 1st respondent misconstrued section 57 of the Interpretations and General Provisions Act, cap. 2 on computation of time.

9. In response to the motion, the 2nd respondent filed a preliminary objection dated 10 June 2022 in which it was urged that the applicant’s motion was filed outside the 14-day period contrary to the provisions of section 175(1) of the Public Procurement and Asset Disposal Act, 2015.

10. The application was also filed outside the three days’ period within which the substantive motion ought to have been filed as directed by this Honourable Court when it granted the applicant leave to file the motion. The substantive motion also contains prayers for orders for which leave has not been granted.

11. None of the parties had filed submissions as directed by the court and particularly by 13 June 2022 when they ought to have been highlighting the submissions. The 1st respondent was not represented and neither was any response filed on its behalf.

12In view of the strict timeliness within which this sort of matters should be disposed of, I have had to decide the application based on the material before court.

13. To begin with, I would agree with the 2nd respondent’s learned counsel, and it is obvious that the applicant has sought for more prayers than those for which leave was granted.

14. In the chamber summons application seeking for leave, the prayers sought were stated to be the following:1. Spent2. That leave be granted to the applicant seeking for an order of certiorari to move the High Court to remove into this court to quash the decision of the 1st respondent dismissing the applicant request for review letter.3. That leave be granted to the applicant to move the High Court for an order of prohibition, prohibiting the 2nd respondent from entering into any contract in regard to the award of Tender No. KGN-GDD-03-2022 For Supply of Drilling Rock Bits and Stripper Rubbers for Geothermal Development Division (Tricone Roller Bits and Stripper Rubber.4. That the leave so granted operate as a stay of any further proceedings in regard to tender stated above.5. That the application here in request for a hearing of this application before the judge pursuant to rule 3 of order 53 of the Civil Procedure Act (sic).6. That costs of this application be provided for.”

15. So, it is apparent that prayers 3, 4 and 5 in the Motion are not among the prayers for which leave was sought in the chamber summons. Without much debate this honourable court would not consider these prayers even if the applicant’s motion was to be heard on merits.

16. The objection to the hearing of the motion on the ground that the notice of motion was filed outside the prescribed period is also not in dispute. Mr. Tuitoek the learned counsel for the applicant admitted that indeed the motion was filed outside time and that it was an error on his part.

17. The learned counsel did not, however, proffer any reasons why the notice of motion was filed outside time. Neither did he seek extension of time for the motion to be deemed as duly filed notwithstanding that it had been filed outside time. Had he done so and the application allowed, it is certain that the applicant’s application would have been allowed because there is an obvious error in computation of time within which the applicant should have sought the request for review. While it is true, and it was not in dispute that the last date by which the applicant ought to have filed its application for review was 3 May, 2022, it is not also in dispute that the same date had been declared a public holiday and therefore the next available date by which the request for review ought to have been filed was 4 May 2022. But even with this information in mind, the 1st respondent still held as follows:

18. In computing time when the applicant should have sought administrative review before the board with respect to challenging the reason advanced by the respondent on why the applicant’s tender was unsuccessful, April 19, 2022is excluded pursuant to section 57(a) of the IGPA being the day which the applicant learnt of the occurrence of such alleged breach when it received the letter of regret from the respondent. This means, 14 days started running from April 20, 2022 and lapsed on May 3, 2022. In essence, the applicant had between April 19, 2022 and May 3, 2022 to seek administrative review before the board with respect to challenging the reasons advanced by the respondent on why the applicant’s tender was unsuccessful. However, the applicant filed a request for review on May 4, 2022 which was the 15th day from the date of receipt of the letter of regret by the applicant therefore time-barred and contrary to section 167(1) of the Act read with Regulation203(2)(c) (ii) of the Regulations 2020 in so far as the applicant became aware of the alleged breach complained of against the respondent on April 19, 2022.

19. To this end, we find and hold that the request for review dated and filed onMay 4, 2022was filed outside the statutory period of (fourteen) 14 days of notification of award or date of occurrence of breach at any stage of the procurement process as provided in section 167(1) of the Act read with regulation 203(2)(c)(ii) of regulations 2020. In the circumstances, the court lacks jurisdiction to hear and determine the request for review dated 4th May 2022. ”

20. The decision was made on 26 May 2022 but in a decision delivered by the same board a day earlier, in particular on 25 May 2022, where the same issue on computation of time arose, the 1st respondent held that having received notification of the award on 19 April 2022 just like in the present case, the last day to file the request for review was on 15 May 2022 since the 3 May 2022 was a public holiday. The application before the Board in which it made this finding was Application No. 40 of 2022 Medivision Equipment Limited versus Accounting Officer, Kenya Medical Supplies Authority & Another.In that decision the 1st respondent captured the objection to the hearing of the review as follows:

21. The respondent objects to the hearing and determination of the instant request for review on grounds that the 14 days within which the applicant ought to have filed the instant request for review, having been notified of the outcome of evaluation of the subject tender via email on April 19, 2022, lapsed on May 3, 2022 yet the instant request for review was filed on May 4, 2022 thus time barred and therefore the board has no jurisdiction to hear and determine the same.”

22. The facts are on all fours with the preliminary objection raised against the applicant in its request for review whose decision is now the subject of these proceedings. In determination of this issue the 1st respondent held as follows:

23. In computing time when the applicant should have sought administrative review before the board with respect to challenging the reason advanced by the respondents on why the applicant’s tender was unsuccessful, the April 19, 2022is excluded pursuant to section 57(a) of IGPA being the day which the applicant learnt of the occurrence of such alleged breach when it received the letter of regret from the respondents. This means, 14 days started running from April 20, 2022 and was set to lapsed on May 3, 2022. However, we have taken judicial notice that vide a gazette notice No. 4844 and dated 25th of April 2022 Dr. Fred Matinagi, the Cabinet Secretary for Interior and Coordination of National Government, declared and gazetted Tuesday the May 3, 2022 as a public holiday to mark Idd-ul-Fitr in exercise of the powers conferred to him by section 2(1) of the Public Holidays Act chapter 110 of the Laws of Kenya. To this end, Tuesday, May 3, 2022 is an excluded day for purposes of computation of time in this review pursuant to section 53(b) of the IGPAbecause the last day of the 14 day period was a public holiday. Accordingly, the last day of the 14 day period included the next following day after that 3rd May 2022 being, May 4, 2022. In essence, the applicant had between April 19, 2022 and May 4, 2022 to seek administrative review before the board with respect to challenging the reasons advanced by the respondent on why the applicant’s tender was unsuccessful.”

24. It cannot be that 1st respondent would in one case acknowledge May 3, 2022 as a public holiday and therefore did not count in computation of time and in yet another case decided a day after, literally turn around and claim that May 3, 2022 ought to have counted in computation of time and therefore if the applicant did not file its request for review on that date, it application was time barred.

25. This was a clear error on the face of the record or a procedural impropriety and a judicial review court would intervene on either of these grounds.

26. But as noted there is no proper application before me upon which I can exercise my discretion and quash the 1st respondent’s decision. The applicant, as earlier noted did not proffer any reason why the motion was filed outside the prescribed time and no attempt was made to have the application deemed as duly filed though filed out of time.

27. In face of the preliminary objection and to which there is no answer; in the absence of any reasons why the motion was not filed within the prescribed time and without extension of time, the motion before court is defective and on this ground alone it should fail.

28. I therefore uphold The 2nd respondent’s preliminary objection and dismiss the applicant’s application. I make no order as to costs.

SIGNED, DATED AND DELIVERED ON 22 JULY, 2022. NGAAH JAIRUSJUDGE