procedures. The Act was legislated to hasten or expedite the Procurement Procedures for the benefit of the
public. Indeed, sections 36(6) and 100(4) of the Act which are ouster clauses, were tailored to accelerate
finality of Public Projects. The intention of efficiency is noble and must be appreciated if the development
agenda is to be achieved. The Court cannot ignore that objective because it is meant for a wider public good
as opposed to an individual who may be dissatisfied with the procuring entity. However the Court must put
all public interest considerations in the scales and not only the finality consideration. The said Act also has
other objectives namely to promote the integrity and fairness of the procurement procedures and to
increase transparency and accountability. Fairness, transparency and accountability are core values of a
modern society like Kenya. They are equally important and may not be sacrificed at the altar of finality.
The Court must look into each and every case and its circumstances and balance the public interest with
that of a dissatisfied applicant. Adjudication of disputes is a constitutional mandate of the Courts and the
Court cannot abdicate from it.”
164. The rule of law, it has been stated outweighs inconvenience/chaos hence administrative convenience cannot
justify unfairness. However, the issue of fairness always takes place in a practical setting. All public
procurements are for the public good except, we wish to register great deprecation towards the insatiable
interest that surrounds lucrative government procurements which is not really public interest. It is an open
secret that major financial leaks in Kenya have been in public procurement. We only emphasize that nothing
would serve public interest better than adhering to the law on procurement and its objectives, as well as
keeping delay in public procurement at the bare minimum.
165. We have considered the instant application and the importance of the subject project to future generations.
We have also taken into account the fact that the PE did not in its tender documents define what the Original
Equipment Manufacturer meant as well as the place of the additional services in the contract. If it turns out
that by making provisions for additional services all the parties who are before this Court and who tendered
for the project ought to have been disqualified, by awarding the tender to any of them, this Court would have
abetted an illegality. This Court cannot countenance illegalities under any guise since the High Court has a
supervisory role to play over inferior tribunals and courts and it would not be fit to abdicate its supervisory
role to do so.
166. It is our view that in order to strive towards the achievement of the constitutional principles and values
enunciated in Article 227 of fairness, equity, transparency, competitiveness and cost-effectiveness as well as
the statutory aim in section 2 of the Act of increasing public confidence in procurement procedures, the
tendering process which was conducted by the 1 st interested party herein ought to be and is hereby annulled
and the tendering process is set aside in its entirety. The 1 st interested party if minded to undertake a similar
project should do so de novo in accordance with the Act and Regulations.
167. Each party will bear the costs of this application.