The Respondent’s Case
55. Mr Emmanuel Bitta, Principal State Counsel in the Office of the Attorney General submitted on behalf of the
Respondent. He relied on the Replying Affidavit sworn by the Respondent’s secretary, Pauline Opiyo on
1st April 2014 in opposition to the application. The Respondent annexed a copy of its decision which included
a record of the proceedings as transpired before it, which record, according to the deponent, has not been
challenged. Reliance was placed onKorir, J’s decision in Republic V Public Procurement Administrative
Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR.
56. The Respondent was of the view, therefore, that High Court’s jurisdiction in judicial review is circumscribed
by the provisions of the Law Reform Act (Cap. 26) which also incorporates the provisions of Section 7 of
the Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom on power of
the High Court in England to make an order of Mandamus, Prohibition or Certiorari. Since the High Court of
Kenya has similar powers in judicial review, it was the Respondent’s position that this has led to the
development of fairly well settled criteria for issuance of the orders which include illegality, impropriety of
procedure and irrationality as set out by Korir J in Republic vs. Public Procurement Administrative Review
Board & Another(supra). According to the Respondent, a party seeking a judicial review of a decision of a
tribunal must satisfy the above criteria in order to succeed.
57. In the Replying affidavit by Pauline Opiyo, it was deposed the 2nd and the 3rd interested parties filed separate
Requests for Review before the Respondent challenging the award of the Tender No. ICB/MOEST/7/20132014. The Respondent heard all the parties, considered their submissions, and determined the application
for review and delivered its ruling on 11 th March, 2014 and at no point in time did the ex-parte Applicant
challenge the jurisdiction of the Respondent to hear and determine the request for review. The Respondent,
it was deposed notified the 1st Interested Party of the filing of the requests for review and subsequently the
1stInterested Party supplied to the Board a written memorandum of response together with all the original bid
documents and the relevant minutes and reports on the tender to enable the Respondent consider them and
make an informed decision on the two requests for review. All the parties to the request for review also filed
their respective responses and skeleton submissions.
58. The Respondent submitted that under Section 93 of the Act an aggrieved candidate may request the
Respondent to carry out an administrative review of procurement proceedings where the party alleges there
was a breach of a duty imposed on a procuring entity by the Act or the regulations and which breach may
result to loss or damage on the part of the said candidate and that the powers of the Respondent are under
Section 98 of the Act
59. Further, in an application for judicial review, the Applicant’s case is limited to the grounds set out in the
statement of facts which are the basis upon which leave is granted (see Khobesh Agencies Limited and Other
vs. Minister for Foreign Affairs and International Relations and Others Nairobi JR No. 262 Of 2012 (2013)
eKLR and Order 53, Rule 4(1) of the Civil Procedure Rules. The Respondent classified the grounds of the
application in three categories; 1) factual; 2) legal; and 3) merit review.
60. The first category of factual issues, according to it fall the issues of financial turnover and existence of joint
venture and it was contended that at no point did the ex parte Applicant object to their being raised or sought
for more time to respond to the said issues. Instead, it preferred to respond to the issues straight
away. There was, therefore, joinder of issues on the question of financial turnover and existence or