was) in Re: Kisumu Muslim Association Kisumu HC Misc Application No. 280 of 2003, and Padfield vs.
Minister of Agriculture and Fisheries [1968] HL.
51. The Board, it was contended referred to and applied irrelevant sections of the Act and its regulations by for
instance changing the substance of a Tender.
52. In the 1st interested party’s view, the Board breached the Principles of Natural Justice and exceeded its
jurisdiction when it denied the parties a reasonable opportunity to be heard and also denied the Ex parte
Applicant reasonable notice of the allegations made against it in order to prepare and make an adequate
response. To support this position the cases of R vs. Deputy Industrial Inquiries Commissioner, Ex parte
Moore [1995] IQB 456 AT 490, Dennis vs. United Kingdom Central Council Nursing, Forrest vs. Brighton
Justices[1981] AC 1038, 1045, Hugh Tomlinson, Fair Trial, 2ndEdition, Montgomery vs. HM Advocate [2003] 1
AC 641, 673 andMclean vs. Buchhanan [2001] 1 WLR 2425 were cited.
53. It was further contended that the Respondent’s jurisdiction under Section 93(1) of the Act is limited to
adjudication of alleged breaches of the duties imposed on a procuring entity by the Act and the Regulations
thereunder. The Respondent, however, based its decision on grounds that had not been raised in the
requests for review and notice of which had not been duly given to the parties. Citing R vs. The Public
Procurement Administrative Review Board Ex Parte Kenya Medical Supply Agency, Crown Agents, Deutsche
Gesellschaft Fur Technishe Zusammenarbeit and John Snow Inc. [2010] eKLR, it was submitted that the
Respondent overstepped its mandate by dealing with issues that were not pleaded before it, and by doing
so, reaching the wrong conclusion and exceeded its mandate as provided in the Act and acted unreasonably
by inter alia framing issues that were not before it and cited R vs. KRA Ex Parte Aberdare Freight Services
Ltd. Misc. Application No. 946 of 2004 in support of the submission that new issues raised at the hearing
amounted to an ambush and that failure to afford a party an opportunity to be heard amounts to an error on
the face of the record requiring correction by way of certiorari. Further, support was sought in Mahaja vs.
Khutwalo [1983] KLR 553 at pages 554 and 555, Onyango Oloo vs. Attorney General [1986-1989] EA 456, as
well as the decision by Lord Denning in Kanda vs. Government of The Federation of Malaya [1962] AC
322. The Respondent’s consideration of matters that were not properly raised before it, it was asserted, was
against the 1st Interested Party’s legitimate expectation of procedural fairness yet the duty to act fairly lies
upon everyone who decides anything and for this position the 1 st Interested Party relied on Board of
Education vs. RICE [1911] AC 179, R vs. Army Board of Defence P Anderson [1992] QB 169, De Smith’s
Judicial Review 6th Edition paragraphs 7.050 to 7.058,Stansbury vs. Data Pulse [2004] ICR 52 and Keroche
Case (supra). Hence, the Respondent’s finding was ultra vires since it considered issues not pleaded before
it. Whereas natural justice demands impartiality and fairness and precludes bias the Respondent’s
conclusions show that it selectively formed its opinion without looking at all the documents placed before
it. Its decision therefore, it was submitted offends the principles of natural justice, is outside its jurisdiction
and should be quashed. See the case of AG vs. Ryan [1980] AC 718.
54. In the 1st interested party’s view, a grant of the orders prayed for will ensure that the objects of the Act as set
out in Section 2 will be upheld and that legitimate public interest shall be safeguarded. Whereas the Board
referred to clause 26.4 of the ITT, it failed to consider that this clause is in conflict with Regulation 50 of the
Regulations yet the provisions of the Act and its regulations are mandatory and supersede the provisions of
the bid documents where there is any contradiction. The Respondent, it was submitted therefore should not
have considered this clause in so far as it did not concur with Regulation 50.