150. To rely on the applicant’s provision of the same in order to disqualify it while not doing the same to the other
parties who made similar provisions in our view was contrary to the constitutional principle in Article 227 of
the Constitution which requires competitiveness and went contrary to one of the aims of the Act as provided
in section 2 thereof which is to promote competition and ensure that competitors are treated fairly.
Competitors cannot be said to have been treated fairly when they are subjected to different standards.
151. The applicant contends that the decision of the Board was bias and discriminatory. In Nyarangi & 3 Others
vs. Attorney General [2008] KLR 688, it was held:
“The Blacks Law Dictionary defines discrimination as follows: “The effect of a law or established practice
that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex
nationality, religion or handicap or differential treatment especially a failure to treat all persons equally
when no reasonable distinction can be found between those favoured and those not favoured.” Wikipedia,
the free encyclopedia defines discrimination as prejudicial treatment of a person or a group of people
based on certain characteristics. The Bill of Rights Handbook, Fourth Edition 2001, defines
discrimination as follows:- “A particular form of differentiation on illegitimate ground.”… The law does not
prohibit discrimination but rather unfair discrimination. The said Handbook defines unfair discrimination
as treating people differently in a way which impairs their fundamental dignity as human beings, who are
inherently equal in dignity. Unlawful or unfair discrimination may be direct or subtle. Direct discrimination
involves treating someone less favourably because of their possession of an attribute such as race, sex or
religion compared with someone without that attribute in the same circumstances. Indirect or subtle
discrimination involves setting a condition or requirement which is a smaller proportion of those with the
attribute are able to comply with, without reasonable justification. The US case of Griggs vs. Duke Power
Company 1971 401 US 424 91 is a good example of indirect discrimination, where an aptitude test used in
job applications was found “to disqualify Negroes at a substantially higher rate than white applicants”.
152. It is clear that with respect to the issue of additional services the applicant was unjustifiably treated
differently from the other parties. In Beatrice Wanjiru Kimani vs. Evanson Kimani Njoroge [1997]
eKLR, Omolo, JA he that once it is accepted that a judge was in fact biased against a party, then the
question of any notional fairness in the eventual outcome of the dispute becomes merely academic.
Similarly, in Legal and Human Rights Centre and Others vs. Attorney General [2006] 1 EA 141, it was held that
so long as the law is framed in a way which can result in a differential treatment there cannot be equality
before the law in respect of that law. Once the provisions are discriminative, the intention of the doer is
irrelevant. We agree.
153. Whereas, we are not in a position to hold that the Board was in error in finding that the applicant ought not to
have included additional services in its quotation we hold that view ought to have been applied to all the
parties which made provision for the said additional services and having found that all the parties herein did
so, there was no justification in picking out the applicant and applying that criteria to disqualify the applicant
from the process.
154. The Board further found that the ex parte applicant was not an Original Equipment Manufacturer. From the
decision of the Board it is clear that this term which became so crucial in the Board’s determination was
defined by the PE in the Tender Document. However the Board in its decision adopted a definition other
than the one in the bid document. The Board therefore provided its own definition based on the submissions