71. It was deposed that at the opening of the BAFOs on 13th December 2013, the 1st Interested Party read out
the total prices quoted by the bidders and on 7 th February 2014, the 1st Interested Party announced that it had
awarded the tender to the Ex-parte Applicant at the sum of USD 284, 813, 957.69 which amount was
different from the USD 268,899,699.00 announced at the opening of the BAFO.
72. Aggrieved by the said decision, it was deposed the 2 nd Interested Party filed Request for Review No. 3 of
2014 challenging the award of the tender to the Ex-parte Applicant which Request was consolidated and
heard together with Request for Review No 4 of 2014 filed by the 3 rd Interested Party in respect of the same
tender.
73. According to the 2nd Interested Party, the challenge raised to the nullification of the award revolves around:a.
The jurisdiction of the Court in judicial review proceedings.
b.
Whether the Respondent acted ultra vires.
c.
Whether rules of natural justice were breached:-
i.
by virtue of the process adopted by the Respondent during the hearing on 5 th and 6th March 2014.
ii.
by orders issued in the decision made on 11th March 2014.
d.
Whether the Respondent acted unreasonably.
e.
Whether the Respondent committed an error of fact.
74. The 2nd Interested Party submitted that a party aggrieved by the decision of the Respondent has the option
of either filing an appeal or filing an application for judicial review. The option a party takes determines the
scope of the jurisdiction of the Court in entertaining the challenge to the decision of the
Respondent. However, the Ex-parte Applicant chose to apply for judicial review where role of the Court is
circumscribed by the provisions of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure
Rules; a position well enunciated by the Court in Shaban Mohamud Hassan & 2 Others vs. The Attorney
General & 3 Others, Civil Appeal No. 281 of 2012. In Kenya, it was submitted it is trite law that the jurisdiction
of the Court in judicial review is limited to the facts and grounds in the Statutory Statement and Verifying
Affidavit. This argument was fortified by reference to the reasoning of the Court in) (Khobesh Agencies Ltd &
32 Others vs. Minister Of Foreign Affairs And International Relations, JR No. 262 of 2012. The consistent
position adopted by the Courts in this area is that only the grounds fully disclosed or raised by the Ex-parte
Applicant in the Verifying Affidavit and Statutory Statement and on the basis of which leave was granted can
be considered by the Court as was stated in Republic vs. Chief Magistrate Court, Milimani & 2 Others Ex
Parte John Moguche, Misc Application No. 201 of 2012. Therefore, there is no room for a party to sneak in or
try to advance an argument not disclosed in the Statutory Statement and in respect of which, therefore, no
leave was sought or granted. The Ex parte Applicant, it was submitted is seeking to rely on additional
grounds set out in the Replying Affidavit sworn by Kenneth Mwangi on 17th April 2014 for which no leave was
sought or granted by the Court. According to the 2nd interested party, the new grounds being argued through
the 1st Interested Party include; arguments that the award was made to the Ex parte Applicant not only
because it had the lowest price but also because its bid was the best value for money; introduction of new
evidence such as the “World Bank’s Standard Bidding Documents, Procurement of Goods” to demonstrate
that it is a globally accepted practice that bidders can be in a joint venture which is neither registered nor
duly constituted; the contention (albeit incorrect) the 2nd Interested Party’s price of USD. 765,603,822.55 was