not read out is a new argument which was not advanced by the Ex-parte Applicant at the leave stage; the
arguments that it was advantageous to separate/itemize the quote for additional services were not advanced
by the Ex-parte Applicant at the leave stage or before the Respondent; that the 2 ndInterested Party’s bid
ought to have been disqualified because of allegations of misconduct were also not in issue before the
Respondent; and the attempt to now provide details of qualification and compliance with bid requirements
which they failed to do at the hearing of the requests for review. This, in the 2nd interested party’s view the
Court cannot admit or permit new evidence to be adduced which was not before the Respondent at the time
the decision was made since any material that was not before the Respondent did not form part of the
decision making process and cannot therefore be considered by a judicial review court. The 2nd Interested
Party in the premise urged the Court to ignore the additional grounds.
75. Secondly, 2nd Interested Party argued, in judicial review proceedings, the Court is called upon to review the
decision of an administrative body based on the material presented before that body. The decision sought
to be impugned must be considered in light of the actual material placed before the Board in order to
ascertain whether it acted as required by law and arrived at the correct decision. One of the chief
complaints is that the Respondent erred in finding the Ex-Parte Applicant did not meet the financial and
experience criteria set out in the tender documents. The Respondent determined that fact after examining
the tender documents supplied to it by the 1 stInterested Party and satisfying itself that the material provided
by the Ex-parte Applicant was not sufficient to satisfy the criteria set out in the tender documents. The
argument by the Ex-parte Applicant on that issue, is inviting the Court to engage in a merit review of the
proceedings before the Respondent; a jurisdiction a judicial review Court does not have. This Court is also
not an appellate court to re-evaluate the evidence presented before the Board. See the decision by the
Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd, Civil Appeal No. 185
of 2001 and Republic vs. Kenya Power & Lighting Company Ltd & Anor, JR No. 88 of 2013. The Court’s role
is merely supervisory and is limited to ascertaining whether the decision maker acted lawfully. As long as
the decision maker had jurisdiction to determine the issues in dispute, even if it was wrong, in the absence of
any irregularity in the process, this Court will not interfere with the decision in an application for judicial
review. This Court should adopt the reasoning in Republic vs. Kenya Revenue Authority Ex-Parte Yaya
Towers Limited, Misc. Civil Appl. No. 374 of 2006.
76. The 2nd Interested Party also emphasized that the power and jurisdiction of the Respondent is set out in
Section 98 of the Act where it sits on appeal against the decision of the procuring entity. The said
jurisdiction is, therefore, wide and encompasses re-evaluation of the entire material used by the PE in the
entire process to see if it adhered to the law and the Constitution. The review in Section 98 of the Act is,
therefore, inquisitorial in nature and PE is required in law to provide the Board with its entire file, documents
and notes of all proceedings in connection with the procurement to the Respondent and not just in respect of
the aspects referred to by the party seeking review. According to the 2nd interested party, that position was
emphatically enunciated in the case of Kenya Pipeline Company Limited vs. Hyosung Ebara Company
Limited & 2 Others, Civil Appeal No. 145 of 2011. The decision in Selle vs. Associated Motor Beat Company
[1968] EA 123 is the guide here. The intention in Section 98 of the Act is for the Respondent to audit the
entire process and reliance was sought in Republic vs. Public Procurement Administrative Review Board ExParte Uto Creations Studio Limited, Misc Application No. 89 of 2012. Contrary to the submission by the Exparte Applicant, the 2ndInterested Party submitted that the Respondent had the power to frame the issues
after consolidation of the requests for review and after hearing all the parties. The Respondent, just like a
Court of law, cannot be faulted for identifying what it deemed to be the real issues in controversy. By the
answers to the requests herein denying the claim of illegibility, the 1 stInterested Party and the Ex-parte