Subject to the provisions of this Part, any candidate who claims to have suffered or to risk
suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act
or the regulations, may seek administrative review as in such manner as may be prescribed.
128. “Administrative review” is defined by Black’s Law Dictionary, 9th Edition at page 1434 inter alia as “review
of an administrative proceeding within the agency itself” while Ballentines Law Dictionary at page 13
defines “administrative proceeding” as “a proceeding before an administrative agency, as distinguished from
a proceeding before a court. Compare judicial proceeding”. What then is expected of the Respondent in
exercising its jurisdiction on a request for review? A recent articulation of the elements of procedural fairness
in the administrative law context was provided by the Supreme Court of Canada in Baker vs. Canada
(Minister of Citizenship & Immigration) 2 S.C.R. 817 6 where it was held:
“The values underlying the duty of procedural fairness relate to the principle that the individual or
individuals affected should have the opportunity to present their case fully and fairly, and have
decision affecting their rights, interests, or privileges made using a fair, impartial and open process,
appropriate to the statutory, institutional and social context of the decisions.”
129. The Court further emphasized that procedural fairness is flexible and entirely dependent on context. In order
to determine the degree of procedural fairness owed in a given case, the court set out five factors to be
considered: (1) The nature of the decision being made and the process followed in making it; (2) The nature
of the statutory scheme and the term of the statute pursuant to which the body operates; (3) The importance
of the decision to the affected person; (4) The presence of any legitimate expectations; and (5) The choice of
procedure made by the decision-maker.
130. “Review” is defined in Black’s Law Dictionary, 9th Edition at page 1434 inter alia as“Consideration,
inspection, or reexamination of a subject or thing.” Ballentines Law Dictionaryon the other hand defines
the same word at page 482 inter alia as “A reevaluation or reexamination of anything.” Clearly a review is
much wider in scope than an appeal. However, being an administrative action, it is our view that the
provisions of Article 47 of the Constitution applies to the proceedings, just like any other administrative
action, pursuant to a request for review. That provision deals with fair administrative action which ought to
be expeditious, efficient, lawful, reasonable and procedurally fair. In our view the catchword is “fairness”. It
is therefore our view that so long as the issue has been put forward by the Respondent Board to the parties
and the parties are given a fair opportunity of adequately addressing the same, this Court would not be
entitled to interfere with the decision merely because the issue was not properly pleaded. As was held
in Railways Corporation vs. E A Road Service Ltd [1975] EA 128, where an issue though not properly pleaded
or asserted by a party, but in the court’s opinion became a general issue at the trial without objection on the
part of the other side, the objection that the issue was not pleaded must fail if there is evidence to support
the finding thereon.
131. It was contended that the decision in Odd Jobs vs. Mubia [1974] EA 476 where it was held that a Court may
base its decision on an issue, where it appears from the course followed at the trial that the issue has been
left to the Court for decision, is no longer good law in light of the decision of the Court of Appeal in Nairobi
City Council vs. Thabiti Enterprises Ltd [1995-1998] 2 EA 231. The latter decision was delivered on 7th March,
1997. However, the former case was followed in Abdi S Rahman Shire vs. Thabiti Finance Co. Ltd. [2002] 1
EA 279 which was delivered by the same (Court) on 8 th March, 2002. Similarly the case was considered with
approval by the Court in Marco Munuve Kieti vs. Official Receiver And Interim Liquidator Rural Urban Credit