Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR,and the Court of Appeal’s decision in Kenya
Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others, Civil Appeal No. 145 of 2011.
65. The Respondent made robust submissions on the tribunal’s jurisdiction to make errors. It started by stating
that misapprehension of the law or facts cannot be the basis for orders of certiorari, for those are grounds for
appeal and not judicial review. The Respondents found support in the decision by Odunga, J in Republic vs.
Business Premises Rent Tribunal & 3 Others Ex-Parte Christine Wangari Gachege [2014] eKLR, Republic vs.
Kenya Power & Lighting Company Ltd & Another [2013] eKLR, and Court of Appeal in Kenya Pipeline
Company Limited vs. Hyosung Ebara Company Limited & 2 Others [2012] eKLR.
66. As long as the ex-parte applicant is seeking to question the correctness of the Respondent’s decision in a
judicial review application, the Respondent submitted such application is misconstrued and unsustainable in
law. The application without doubt deals with the issues of public interest and Courts should consider public
interest when exercising their Judicial Review Jurisdiction even where a case has been made out for judicial
review orders. See the case ofRepublic vs. Judicial Service Commission Ex-Parte Pareno (2004) 1 KLR 203 at
219,Halsbury’s Law of England, Volume 4, para 1508, Nairobi HCC Misc Application No. 86 of 2009 and R
vs. Kenya National Commission On Human Rights Ex-Parte Uhuru Kenyatta (2010) eKLR.
67. The Respondent urged this Honourable court to be persuaded by the findings in Republic vs. Kenya Revenue
Authority & Another Ex-Parte Bear Africa (K) Limited where Majanja J.quoted with approval the decision
of Githua, J in Republic vs. Commissioner of Customs Services Ex-Parte Africa K-Link International Limited
Nairobi HC Misc. JR No. 157 of 2012 [2012] eKLR.
68. It was argued by the Respondent that for the reasons stated above, it will be against the public interest to
issue the orders sought and urges this Honourable Court to exercise its discretion and disallow the prayers
of the ex-parte Applicant. The Respondent prays that the ex-parte Applicant’s motion be dismissed in its
entirety with costs to the Respondent.
The 2nd Interested Party’s Case
69. The 2nd Interested Party opposed the Application and relied on: the Affidavits sworn byLivingstone Indetie on
4th April 2014 and 9th May 2014; and the List and Bundle of Authorities dated 26th June 2014. The
2nd Interested Party has also filed a Digest of Authorities dated 26 thJune 2014. It is not in dispute the tender
herein was issued and the method of procurement was a Specially Permitted Procurement Procedure under
Section 92 of the Act with an additional stage of competitive negotiations aimed at ensuring that the
1st Interested Party obtained the lowest possible price. It was averred that all bidders participated in the
competitive negotiations which negotiations were however subject to the usual requirements of maintaining
and ensuring fairness and competitiveness as per the requirement under Section 2 of the Act and Article 227
of the Constitution.
70. It was contended that all bids were subjected to evaluation and were stated to have passed the technical
and financial evaluation stages by the 1 st Interested Party and all the said bidders were invited for the
competitive negotiation meeting where they were requested to submit their best and final offers (BAFO) and
were in addition, asked to indicate the value added services they were willing to supply at no cost.