for that of the administrative authority but they should judge the lawfulness and not the wisdom of the
decision. If the decision was wrong, it should be remedied by an appeal which allows the appellate court to
engage in an intrusive analysis of evidence by the trial tribunal and review the merit of the decision thereto.
See Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd (supra).
145. However, while we reiterate that this Court in exercise of its supervisory jurisdiction by way of judicial review
ought not to usurp the powers of the Board, where the Board fails to consider relevant evidence and
considers irrelevant ones this Court must intervene where the failure to do so renders the decision so
grossly unreasonable as to render it irrational. In our view, this is the ex parte applicant’s case.
146. According to the Board, the ex parte applicant failed the eligibility test because it did not show that it had
experience in the provision of the services sought for over a period of 5 years. In the Board’s view, the ISO
certificate was only for one year and there was no other evidence to support this test. The question here is
whether ISO Certification can be construed as the same thing as experience. The applicant’s view was that
the Board in its decision failed to consider that there was also a certificate of incorporation on the record. At
this stage we cannot state with certainty the decision which the Board would have arrived at had it
considered the Certificate of Incorporation. We however are of the view that the failure to consider the same
was a failure to consider a relevant factor. Whether that factor would have swayed the Board’s mind is not
for us to delve into.
147. It was also decided by the Board that there was no evidence that the ex parte applicant participated in the
Tender as part of a consortium or a joint venture and this finding was based on the fact that the Tender was
solely submitted by the Applicant and that the letter of notification was similarly made to the applicant.
However, there seem to have been a Memorandum of Understanding between the ex parte applicant and an
entity known as New Century Optronics Co. Ltd and it was not contended that the Tender barred a
consortium from bidding. As rightly pointed out on behalf of the ex parte applicant the employment of the
word “lead” contemplated such an arrangement.
148. It was the Board’s decision that the ex parte applicant’s inclusion of sum of 1.4 Billions Shillings was
unjustified and contrary to the parameters agreed by the parties at the BAFO. This figure was in respect of
additional services. According to the Board:
“The Interested sought to justify this astronomical inclusion into its Tender sum by arguing that the items giving
rise to this figure were for additional services. When the Board took him through several of the items set out in
the list of additional services such as the item on the one year, warranty, the cost of transport and many other
items, M Ajay from the Interested Party confirmed that these items had been provided for in the original Tender
document and amounted to a repetition…In view of the foregoing, the Boar finds and holds that the inclusion of
the figure of 1.4 Billion Shillings was unjustifiable and also contrary to the parameters set out and agreed upon
by the parties at the BAFO negotiations namely that the value of added services was to be free of charge and any
services were to be offered at no extra cost to the Procuring Entity.”
149. From the record, it is clear that all the parties herein made provisions for additional services. We have noted
that the 3rd interested party, for example, in its Price Schedule for Goods and Related Services dated
13th December, 2013 quoted additional services in the sum of USD 14,211,094.88.