Automated Summary
Key Facts
The case involves a judicial review application by Blue Sea Services Limited challenging the Public Procurement Administrative Review Board's (PPARB) dismissal of its Request for Review regarding a tender for cleaning services at the Port of Mombasa. The applicant argued the PPARB misinterpreted Section 167 of the PPADA, claiming it had locus standi to file the review within 14 days of notification of the award. The PPARB dismissed the request on 1st September 2023 for want of jurisdiction. The court determined the PPARB's decision was not irrational, affirmed its jurisdiction, and dismissed the judicial review application as the timelines under Section 175(1) of PPADA were met. The applicant failed to demonstrate illegality, procedural impropriety, or irrationality in the PPARB's decision.
Issues
- The court addressed if the applicant, the party against whom the Board's decision was made, has locus standi. It concluded that the applicant has standing as the aggrieved party under Section 175(1), regardless of previous locus standi under Section 167.
- The respondent's unincorporated status was challenged. The court determined that under the Constitution and the Fair Administrative Action Act, the PPARB, as a statutory body with quasi-judicial functions, has the capacity to be sued despite being unincorporated.
- The applicant argued the Board's interpretation of Section 167 was irrational. The court held that judicial review focuses on the decision-making process, not merits, and found the Board's decision within reasonable bounds, thus dismissing the application.
- The court examined if the application was filed within the 14-day statutory period as per Section 175(1) of the Public Procurement and Asset Disposal Act, 2015. The applicant filed the motion on 25th September 2023, with leave granted on 15th September. The court found the application timely, considering the constitutional anchoring of judicial review and the two-track system under common law and the FAA Act.
Holdings
- The court concluded that the PPAR Board's decision was neither illegal nor irrational, as it properly interpreted Section 167 of the PPADA and adhered to procedural fairness, and thus dismissed the application for judicial review.
- The court determined that the application was not time-barred, as it was filed within the 14-day period stipulated by Section 175(1) of the Public Procurement and Asset Disposal Act (PPADA).
- The court held that the respondent (PPAR Board), as an unincorporated statutory body, has the legal capacity to be sued under the Fair Administrative Action Act and Article 260 of the Constitution.
- The applicant was found to have locus standi to file the judicial review application, as they were the party directly affected by the PPAR Board's decision under Section 175(1) of the PPADA.
Remedies
- The applicant's Notice of Motion dated 25th September 2023 is dismissed for lack of merit as the court found no illegality, irrationality, or procedural impropriety in the respondent's decision.
- Each party is ordered to bear their own costs of the application.
Legal Principles
- The court emphasized that judicial review focuses on the decision-making process rather than the merits, relying on principles of illegality (acting without jurisdiction), irrationality (gross unreasonableness), and procedural impropriety (failure to act fairly). It cited cases like Pastoli v Kabale District Local Government Council and held that the respondent's interpretation of Section 167 of the PPADA was rational and within its jurisdiction.
- Addressing the respondent's unincorporated status, the court ruled that the Public Procurement Administrative Review Board, as a statutory body under the PPADA, has the capacity to be sued despite not being incorporated. This was based on constitutional provisions (Article 260) and the FAAA's recognition of such entities in judicial review proceedings.
- The respondent invoked the Kompetenz-Kompetenz principle, asserting its authority to decide its own jurisdiction. The court found this application valid and not irrational, aligning with the doctrine that such bodies can self-determine jurisdictional validity.
Precedent Name
- Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Pelt Security Services Limited
- Saisi & 7 Others v Director of Public Prosecutions & Others
- Aprim Consultants v Parliamentary Service Commission & Another
- Kenya Vision 2030 Delivery Board v Commission on Administrative Justice
- Finmax Community Based Group & 3 Others v Kericho Technical Institute
- Republic v Communications Commission of Kenya, Ex Parte East Africa Television Network Limited
- Republic v Kenya National Examination Council, Ex Parte Geoffrey Gathenji & Others
- Mombasa Judicial Review Case No. E025 of 2023: Republic v Public Procurement Administrative Review Board
- Matagei v Attorney General
- Pastoli v Kabale District Local Government Council & Others
Cited Statute
- Public Procurement and Asset Disposal Act
- Fair Administrative Action Act
- Civil Procedure Rules, 2010
- Constitution of Kenya, 2010
- Public Procurement and Asset Disposal Regulations
Judge Name
OA SEWE
Passage Text
- It follows, then, that the applicant's Notice of Motion dated 25th September 2023 is devoid of merit and is hereby dismissed.
- In the premises, it is my finding that the application was brought timeously and is therefore competently before the Court for determination.
- I therefore find no merit in the argument that, being an unincorporated body, the respondent lacks the capacity to be sued.