Kenya Medical Supplies Authority v Revital Health (EPZ) Limited & 2 others [2017] KECA 356 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that donor-funded tenders can follow World Bank rules, and losing a bid doesn't breach your constitutional rights if you get reasons and can still seek review.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of sections 6(1) and 7(1) of the PPDA, 2005
Sections 6(1) and 7(1) are not inconsistent with the Constitution; moreover the 1st respondent did not in its amended petition seek any declaration against them.
The court agreed with the High Court that the donor-priority provisions survive constitutional scrutiny. It noted the 1st respondent's amended petition did not pray for any declaration regarding those sections; its challenge was confined to Clause 38.3. The provisions give effect to donor conditions in donor-funded procurement and were held to rest on good sense and logic.
Whether Clause 38.3 of the tender violated Article 47 and section 4(3)(c) of the Fair Administrative Action Act
Clause 38.3 did not violate the right to fair administrative action; the High Court's finding to the contrary was erroneous.
The 1st respondent was notified of the failed bid, promptly sought and received written reasons, bids were opened publicly with minutes, and results were published. It retained statutory rights under section 5(2) of the Fair Administrative Action Act to seek review before the Commission on Administrative Justice or a court. Premature conclusion of the contract with the successful bidder did not per se deny fair administrative action.
Status of the World Bank Guidelines in Kenyan law
The Guidelines, incorporated via Clause 38 of the ITB, have the force of law by virtue of section 5 of the International Development Association Act, and a constitutional challenge to Clause 38.3 could only arise if it were shown to be a treaty or convention under Article 2(6).
The court reasoned that under Article 2 only general rules of international law, treaties and conventions ratified by Kenya form part of Kenyan law. Only upon showing that Clause 38.3, made pursuant to the World Bank Guidelines, was a treaty or convention could its inconsistency with the Constitution be raised; in any event sections 6(1) and 7(1) of the PPDA sanction donor conditions prevailing in donor-funded procurement.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider the evidence on record, evaluate it afresh and draw its own conclusions.
- Where a tender process affords an unsuccessful bidder notice, written reasons, and statutory avenues of review under the Fair Administrative Action Act, the mere fact that the contract is concluded with the successful bidder before unsuccessful bidders are notified does not of itself violate Article 47.
- By section 5 of the International Development Association Act, the World Bank Guidelines have the force of law, and donor-imposed procurement conditions prevail over the PPDA pursuant to sections 6(1) and 7(1).
Court orders
#- 1.Appeal allowed with costs
- 2.Judgment and decree of the High Court issued on 29th October 2015 set aside
- On appeal from
- High Court of Kenya at Mombasa
- Constitutional Petition No. 75 of 2015
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (Article 164 of the Constitution); the judgment does not cite a specific jurisdictional provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Medical Supplies Authority v Revital Health (EPZ) Limited & 2 others [2017] KECA 356 (KLR)", Case Analysis (2017). Civil Appeal No. 65 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/356/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.