Finance & Another Civil Appeal No. 164 of 2002 which was a decision delivered on 28th May, 2010 by a bench
composed of judges, one of whom decided the Thabiti Case. The same course was followed in Jackson K
Kiptoo vs. The Hon Attorney General [2009] KLR 657, a decision decided on 6th November, 2009 by the
same Court. It is therefore clear that even after the Thabiti Enterprises Case the Court of Appeal continued
to cite with approval the Odd Jobs Case.
132. The four main issues that the Ex parte Applicant claimed were not pleaded by any of the parties and yet the
Board went ahead to consider and determine included;
1.
Whether the Applicant was a consortium, joint venture or not?
2.
Whether the Ex parte Applicant met financial eligibility, i.e. the minimum financial turnover; and
3.
Whether the Ex parte Applicant had the requisite experience as required by the Tender Documents; and
4.
Whether the Ex parte Applicant was an OEM.
133. The concern of this Court is whether these issues were pleaded, or arose in the course of proceedings and
were responded to by the Ex parte Applicant and the 1 st Interested Party. We note the Ex parte Applicant, in
relation to the issues complained of, used phraseology such as ‘’if such an allegation had been properly
pleaded, and the applicant [had] been given a proper opportunity to respond...’’as the basis of the
queries on the observance of the demands of natural justice by the Respondent. Those words portend
admission that there was a form or semblance of pleading of the issues complained of except, according to
the Ex parte Applicant, it was not to the full standard of the law. That notwithstanding, we have scrutinized
the decision of the Respondent and the documents presented before it and make the following observations
and conclusions on the matter;
a.
The Request for Review filed by the 2ndInterested Party at paragraphs 1 and 3 pleaded illegibility of the Ex
parte Applicant on account of not being an OEM, failure to meet the technical and financial qualifications.
b.
The Request for Review filed by the 3rd Interested Party in paragraph 4 pleaded that there was noncompliance with the Act and the Regulations therein. Specific paragraphs i.e. 4.1, 4.1.1, 4.1.2, 4.2 and 4.3
raised the issues of whether the Ex parte applicant was an OEM, whether it was joint venture, whether it had
the requisite experience of not less than 5 years in the manufacturing and distribution of ICT related services
as outlined in the Tender Data Sheet.
c.
Further, the Response to the 3rd Interested Party’s Request for Review, at paragraphs 6 and 7, the issue of
financial turnover of the Ex parte Applicant, experience in undertaking similar contracts and whether the Ex
parte Applicant was a consortium, joint venture or not were addressed. Similarly, the entire Ex parte
Applicant’s Response to the Request for Review by the 2 nd Interested Party and specifically paragraphs 3, 4,
5, 6, 7 and 8 addressed similar issues including that of OEM.
d.
The Procuring Entity’s Response to the Request for Review by the 3 rd Interested Party at Page 3 and 4,
responded to the grounds of non-compliance with the tender requirements, evaluation criteria and nondisclosure. The Procuring Entity categorically stated that the Ex parte Applicant (successful bidder) had the
necessary qualifications and met all the conditions of the tender on technical and financial tests. It made
specific averments on the qualifications of the Ex parte Applicant as it showed existence of joint venture or
consortium; was an OEM; had ISO certification; had the necessary experience. It also referred the Review
Board to the documents it had provided and which appeared at pages 155 to 305 of the Ex parte Applicant’s
bid document on these issues. For precise location of these averments see paragraphs 12, 15, 16, 17, 18
and 19 of the Response that was filed by the PE.