Automated Summary
Key Facts
The Applicant, a consortium including Toyota Tsusho Corporation and Kyuden International Corporation, was disqualified by KENGEN on 15 October 2020 from the 140 MW Olkaria PPP geothermal power project tender. The Applicant filed an urgent judicial review application on 6 November 2020 seeking orders to quash the disqualification, prohibit KENGEN from proceeding without their participation, and compel re-admission to the tender process. The court certified the matter urgent, stayed implementation of KENGEN's decision pending review, and directed electronic filing and service of documents due to COVID-19 restrictions. The case was scheduled for hearing on 1 December 2020.
Issues
- The second issue concerned the Applicant's request for exemption from the mandatory requirement under Section 67 of the Public-Private Partnership Act to seek relief through the non-existent Public-Private Partnership Petitions Committee, which had not been constituted as required by law.
- The court was required to determine if the Kenya Electricity Generating Company PLC's decision to disqualify the Applicant's consortium from the Olkaria PPP geothermal power project tender on 15th October 2020 was lawful and fair, particularly given the Applicant's submission of replacement lead member documentation and KENGEN's failure to respond.
Holdings
- The Chamber Summons dated 6th November 2020 shall be heard on 2020-12-01, with the court directing that pleadings and submissions be filed electronically due to COVID-19 restrictions.
- The Respondent is granted leave to file and serve responses to the Chamber Summons within ten (10) days of service by the Applicant.
- The Applicant must serve the Respondent with the Chamber Summons, skeletal submissions, a copy of the ruling, and a hearing notice within ten (10) days of this ruling.
- All parties must file pleadings and submissions electronically through the Judiciary e-filing system and send copies to judicialreview48@gmail.com with a copy to asunachristine51@gmail.com.
- Parties are at liberty to apply for further orders as needed.
- Parties must file affidavits of service electronically to the specified email addresses to evidence compliance with service requirements.
- The Deputy Registrar is directed to place the matter on the Judicial Review Division's causelist for hearing on 2020-12-01.
- The court certified the Chamber Summons dated 6th November 2020 as urgent and admitted it to hearing on a priority basis.
- The Deputy Registrar must send a copy of the court's directions to the Applicant by email by close of business on 2020-11-12.
- Temporary orders are granted to stay the implementation of the Respondent's disqualification decision pending the hearing or further court orders.
Remedies
- Temporary orders are granted staying the implementation, enforcement, and/or execution of the Respondent's decision disqualifying the Applicant's consortium pending the hearing and determination of the Chamber Summons or until further orders of the Court.
- The Chamber Summons dated 6th November 2020 is certified urgent and is admitted to hearing on a priority basis.
Legal Principles
The Applicant challenged KENGEN's disqualification decision under judicial review doctrines, arguing it was unlawful and unfair. The court recognized the urgency and directed proceedings under judicial review after determining the non-existent Petition Committee could not provide timely relief. Key principles included evaluating administrative decisions for compliance with statutory requirements and ensuring procedural fairness in procurement processes.
Cited Statute
Public-Private Partnership Act, 2013
Judge Name
P. NYAMWEYA
Passage Text
- I have considered the application dated 6th November 2020 and the reasons offered in support of the urgency, and I am satisfied that the Applicant has demonstrated that this matter is urgent. This for reasons that there are certain actions that are likely to be undertaken with respect to the tender that is the subject of the Respondent's impugned decision.
- I. The Chamber Summons dated 6th November 2020 is certified urgent and is admitted to hearing on a priority basis... IX. The parties shall also be required to file and send to the Deputy Registrar... XII. Parties shall be at liberty to apply.
- Section 67 of the Public Private Partnerships Act provides as follows in this regard:... The decision of the Committee shall be final and binding on both parties.