(3) A request for a review shall be accompanied by the prescribed fee.”
“122. Upon completing a review the Review Board may do any or both of the following —
(a) confirm, vary or overturn the Director- General’s debarment of the person; and
(b) order the payment of costs as between parties to the review.”
159. Therefore, the way the law is tailored, the Review Board has no power to debar a person in a proceeding for
administrative review under section 92 and 98 of the Act, since it is not a power expressly conferred upon
it. In our view where a statute donates powers to an authority, the authority ought to ensure that the powers
that it exercises are within the four corners of the statute and ought not to extend its powers outside the
statute under which it purports to exercise its authority. In Republic vs. Kenya Revenue Authority Ex Parte
Aberdare Freight Services Ltd & 2 Others [2004] 2 KLR 530 it was held that the general principle remains
however, that a public authority may not vary the scope of its statutory powers and duties as a result of its
own errors or the conduct of others and based on East African Railways Corp. vs. Anthony Sefu Dar-EsSalaam HCCA No. 19 of 1971 [1973] EA 327, the courts are empowered to look into the question whether the
tribunal in question has not stepped outside the field of operation entrusted to it.
160. Therefore where the law exhaustively provides for the jurisdiction of a body or authority, the body or
authority must operate within those limits and ought not to expand its jurisdiction through administrative craft
or innovation. The courts would be no rubber stamp of the decisions of administrative bodies. However, if
Parliament gives great powers to them, the courts must allow them to it. The Courts must nevertheless be
vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative
bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial,
quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals
or boards must act in good faith; extraneous considerations ought not to influence its actions; and it must not
misdirect itself in fact or law. See Re Hardial Singh and Others [1979] KLR 18; [1976-80] 1 KLR 1090, Padfield
vs. Minister of Agriculture, Fisheries and Food [1968] AC 997; Secretary of State for Employment vs. Associated
Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455, Secretary of State for Education and
Science vs. Tameside Metropolitan Borough Council [1977] AC 1014.
161. It is therefore our view that in granting the order whose effect was to debar the Applicant from participating in
the procurement process the Respondent exceeded its jurisdiction and made an illegal order. An illegal
Court order is a nullity and the court cannot sanction what is illegal.
162. We are of the view and hold that the Board not only exceeded its jurisdiction by debarring the applicant from
the tendering process but did so on the basis of extraneous considerations and misdirected itself on glaring
factual matters.
163. As we conclude, both sides of the divide argued, albeit on different stand points, that the Tender herein
bears immense public importance. As was held in Republic vs. Public Procurement Administrative Review
Board & Another Ex Parte Selex SistemiIntegrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728, Nyamu,
J (as he then was) recognised the public interest in the enactment of the Act when he stated as follows:
“Section 2 of the Public Procurement and Disposal Act, 2005 is elaborate on the purpose of the Act and top
on the list, is to maximize economy and efficiency as well as to increase public confidence in those