Decision In Application No 16 Of 2025- Power Parts (Kenya ) Limited Vs Kenya Ports Authority1

Key Facts

Issues

• The Board addressed whether the Request for Review was sub judice, given overlapping High Court Case No. HCCOMM/E070/20204. The Applicant argued the matters were distinct: the High Court case concerned contract termination and arbitration, while the Board's review focused on procurement process legality. The Board concluded the issues were not directly and substantially the same, allowing the review to proceed.
• The Board determined whether it had jurisdiction to review the procurement process in Tender No. KPA/115/2024-25/TE. The Applicant argued it had locus standi as a candidate who obtained the tender document from the Public Procurement Information Portal. The Respondents contended the Applicant lacked standing as it was not a candidate in the restricted tender. The Board found the Applicant met the jurisdictional requirements under Section 167(1) and Section 2 of the Act.
• The Applicant alleged the Procuring Entity commenced the tender process in violation of the High Court's orders and statutory obligations under Section 102(1)(b) of the Act. The Board found the procurement was lawfully initiated based on an existing plan, budget approval, and adherence to restricted tendering requirements, including inviting at least ten prequalified bidders as mandated.

Holdings

• The Board ruled the Request for Review did not violate the doctrine of sub judice. It distinguished the matter from ongoing High Court proceedings (HCCOMM/E070/20204), emphasizing the procurement process was a fresh tender unrelated to the existing contractual disputes in the High Court case.
• The Board found the Applicant's Request for Review did not challenge the choice of restricted tendering as the procurement method. This allowed the Board to proceed under its jurisdiction, as Section 167(4)(a) of the Act does not bar review of procedural compliance unrelated to method selection.
• The Board determined that the Kenya Ports Authority's initiation of the procurement process for Rewinding, Servicing, Repair, and Condition Monitoring of Rotating Electromechanical Machines did not violate the law. The process was found to comply with the Public Procurement and Asset Disposal Act and relevant regulations, including restricted tendering under Section 102(1)(b) and proper budgeting under Section 44.
• The Board dismissed the Request for Review, directing the Respondents to complete the procurement process and ordering each party to bear their own costs. The decision was based on findings that the procurement was lawful and the Applicant's claims lacked merit.
• The Board affirmed its jurisdiction to review the procurement process, rejecting the Respondents' preliminary objections. It confirmed the Applicant had valid standing as a candidate by accessing the tender document via the Public Procurement Information Portal, a publicly accessible platform.

Remedies

• Each party shall bear its own costs in the Request for Review.
• The Respondents are hereby directed to proceed with the procurement proceedings of the subject tender to its logical conclusion.
• The Request for Review dated 21st February 2025 and filed on 24th February 2025 in respect of Tender No. KPA/115/2024-25/TE for Rewinding, Servicing, Repair, and Condition Monitoring of Rotating Electromechanical Machines be and is hereby dismissed.

Legal Principles

• The Respondents claimed the matter was res judicata due to ongoing High Court proceedings. The Board held that the Request for Review involves a fresh procurement and thus does not conflict with the prior case.
• The Applicant argued that the Request for Review does not offend the sub judice doctrine, as the procurement process is distinct from the High Court case. The Board agreed, noting the matters are not directly and substantially the same.
• The Applicant argued that the procurement process violated the constitutional principle of rule of law under Article 10 and Section 3(1) of the Public Procurement and Asset Disposal Act. The Board determined that the procurement was lawful and not in breach of these principles.
• The Board conducted a judicial review to determine if the procurement process was ultra vires the Act, examining the lawfulness of the restricted tendering method and compliance with statutory requirements.

Precedent Name

• Samuel Kamau Macharia and another v Kenya Commercial Bank Ltd and 2 others [2012] eKLR; Supreme Court Application No. 2 of 2011
• State v Onagoruwa [1992] 2 NWLR 221 – 33 at 57 – 59
• Rentco East Africa Limited, Lantech Africa Limited, Toshiba Corporation Consortium v Public Procurement Administrative Review Board & another (2017) eKLR
• PPARB Application No. 30 of 2015 Noble Gases International Limited v Kenyatta National Hospital
• PPARB Application No. 18 of 2018 Chogis Garage Limited & 22 Others v Ministry of Water & Irrigation
• Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others [2022] eKLR ; Nairobi ELC Case No. E246 of 2021
• Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga
• PPARB Application No. 12 of 2021 Five Blocks Enterprises Ltd v KEBS

Cited Statute

• Public Procurement and Asset Disposal Act, No. 33 of 2015
• Civil Procedure Act, 2010
• Constitution of Kenya, 2010
• Public Procurement and Asset Disposal (Regulations) 2020

Judge Name

• Dr. Susan Mambo
• Mr. Jackson Awele
• Ms. Alice Oeri

Passage Text

• 135. The upshot of the Board's findings is that the instant Request for Review fails and is disallowed.
• 131. In the circumstances, this Board finds that by commencing the procurement process in the subject tender, the Procuring Entity did not act contrary to the law.
• 134. We have established that the Procuring Entity did not act contrary to the law in commencing the procurement process in the subject tender.