142. We must emphasise that it is not every “wrong” decision that an inferior tribunal makes that renders it
amenable to judicial review as opposed to an appeal. Whereas, it may be true that had this Court been
hearing the request for review it might have arrived at a different decision, the various arguments advanced
by the parties herein with regard to the unreasonableness and irrationality of the decision amount to inviting
the Court to undertake a merit review or appeal on the decision of the Board. In line with the approach we
have taken, the Court would, in such instance, be usurping the statutory function of the Board because it will
be forced eventually, if it sustains the arguments, to supplant its own view in place of that of the Board. Our
view is reinforced by the decision of the Court of Appeal in Kenya Pipeline Company Limited vs. Hyosung
Ebara Company Limited & 2 Others [2012] eKLR where the Court expressed itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the
procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks
the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature
of powers given to the Review Board including annulling, anything done by the procurement entity and substituting
its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal.
From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to
breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be
lightly interfered with. Having regard to the wide powers of the Review Board we are satisfied that the High Court
erred in holding that the Review Board was not competent to decide whether or not the 1st Respondent��s tender had
met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as
unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it. In conclusion, it is
manifest that the application for Judicial Review was not well founded. The 1 st Respondent did not establish that the
Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or
that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with
the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were
regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much
entitled to decide those matters wrongly as it was to decide them rightly. The High Court erred in essence in treating
the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside
the scope of Judicial Review jurisdiction.”
143. We also reproduce the decision of Odunga, J in Republic V Business Premises Rent Tribunal & 3 Others ExParte Christine Wangari Gachege [2014] eKLR where it was held that:
“…In this case it is not in doubt that the decision which is being challenged in these proceedings was the
subject of an application for setting aside which decision was disallowed by the Respondent. Whether that
decision was right or not the Applicant ought to have appealed against the same instead of challenging the
decision in respect of which attempt to set aside had failed. In judicial review proceedings the mere fact that
the Tribunal’s decision was based on insufficient evidence, or misconstruing of the evidence which is what
the applicant seems to be raising here or that in the course of the proceedings the Tribunal committed an
error are not grounds for granting judicial review remedies. In reaching its determination, it must however,
be recognized that a Tribunal or statutory body or authority has jurisdiction to err and the mere fact that in
the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial
review as opposed to an appeal. It is only an appellate Tribunal which is empowered and in fact enjoined in
cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own