and that every Tender has very clear specifications of what is to be supplied, how it is to be supplied and
where it is to be supplied. These specifications are applicable to all parties and cannot be varied because
any variation would change the substance of the Tender and would thus fall foul of the Act, especially
Section 34 and Section 59 (2) and (3), which prohibits change of specifications and tender once submitted
respectively. The Ex parte Applicant and the PE flouted the law in including a price on additional services
which was not read out during the opening of the bids. Such practice negates Section 2 of the Act, which
emphasises the objectives of the Act: 1) to maximize economy and efficiency in public procurement: 2) to
promote integrity and fairness; 3) to increase transparency and accountability; and 4) to increase public
confidence in procurement procedures. The 3rd Interested party therefore urged this Court to decline the
application for judicial review.
The Court’s Determination
93. We have considered the foregoing. Before delving into the merits of the application we wish to emphasis that
the matter the subject of this application and judgement is a very important project for this country. The
matter revolves around what is popularly known in this country as the “Laptop Project”. It is a project of the
Government of Kenya by which the Government undertook in part fulfilment of the requirements of Articles
43(f) and 53(1)(b) of the Constitution which provide that every person has a right to education and that every
child has a right to free and compulsory basic education. The role played by education in the development of
a nation cannot be overemphasized. In our view the rights and freedoms guaranteed under the Constitution
cannot be realized and meaningfully enjoyed unless the society is properly, efficiently and sufficiently
informed and in this era of information technology, access to global sources of information such as internet
and other related forms of information is nolonger a luxury but a necessity.
94. In order to fulfil this noble Constitutional mandate, it is our view that the process through which the tools
necessary for the achievement of the said goal ought to be sourced and secured through a process that is
beyond reproach. It is with this in view that the processes relating to the procurement of such materials and
equipment ought to strictly comply with the provisions of Article 227 of the Constitution which provides:
When a State organ or any other public entity contracts for goods or services, it shall do so in
accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
95. For the purposes of achieving the Constitutional objective Parliament enacted the Public Procurement and
Disposals Act (hereinafter referred to as the Act) which in view of Nyamu, J(as he then was) in Republic
vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi
HCMA No. 1260 of 2007 [2008] KLR 728:
“…to maximize economy and efficiency as well as to increase public confidence in those procedures…..The
intention of efficiency is noble and must be appreciated if the development agenda is to be achieved...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.”