OJSC Power Machines Ltd & another v Public Procurement Administrative Review Board Kenya & 3 others (Civil Appeal 28 of 2016) [2017] KECA 386 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed KenGen's geothermal tender award, ruling that courts reviewing procurement decisions examine process, not whether the outcome was commercially best.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 82 of the Public Procurement and Disposal Act in bid evaluation
The complaint that section 82 was not complied with, or that the criteria changed from 'lowest cost' to 'best commercial return', has no substance; there is no difference between the two in the circumstances.
Section 82 requires scores to be assigned in accordance with the procedures and criteria set out in the request for proposals. The tender set out three financial components: availability factor, Output MW and low cost, which remained the criteria throughout. The 3rd respondent's proposal had the highest output, availability factor and revenue to the 2nd respondent; awarding to the appellant would have compromised the public finance principles in Article 227 and cost KenGen significant revenue.
Scope of the Review Board's jurisdiction under the Public Procurement and Asset Disposal Act, 2015
The Review Board had wide powers and jurisdiction to entertain the Request for Review, but it properly declined to determine issues not raised in the Request for Review.
Section 28 of the 2015 Act confers wide powers on the Board to review procurement disputes, and section 173 empowers it to annul, direct, substitute or terminate. However, the appellant's complaints about the 3rd respondent's incorporation and scoring were not raised in the Request for Review, and the Board could not consider issues not placed before it, as required by Regulation 73(2) of the Regulations.
Qualification of the 3rd respondent consortium given its date of incorporation
The ground fails for lack of proof; the fact that the consortium would attain three years 18 days before the closing date per se cannot be a ground to say it had not provided the required three-year audited financial statements, and the consortium as a whole met the requirements.
The evaluation committee was satisfied that the evidence of financial capability had been supplied, shifting the burden to the appellant to prove otherwise. The proposal was made as a consortium of three companies and the 2nd respondent confirmed the consortium met all requirements. There is a distinction between bidding singly and as part of a consortium.
Interference with expert procurement evaluation on judicial review
The court will not interfere with an evaluation exercise carried out by experts unless the evaluation was not carried out in accordance with the tender document or there are fundamental and glaring defects in the evaluation report.
The finding that the appellant's bid was unresponsive and the 3rd respondent's bid most responsive was a finding of fact based on construction of the bid documents, and could only be overturned on a merit review, not in judicial review proceedings. The Review Board's decision was not grossly unreasonable or outrageous in defiance of logic.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; a public body has jurisdiction to err on the merits and error of merit is a matter for appeal, not judicial review.
- A court in judicial review must not act as an appellate court or substitute its own opinion for that of the public body; insufficiency of evidence is not a ground for judicial review remedies.
- To quash a decision of a public body, the decision must have been made without or in excess of jurisdiction, in breach of natural justice, or be so grossly unreasonable as to meet the Wednesbury standard.
- Under section 82 of the Public Procurement and Disposal Act, the aggregate scores and scores for individual factors are to be arrived at in accordance with the procedures and criteria set out in the request for proposals itself; each procuring entity determines its own criteria.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Appl. No. 284 of 2015
- Jurisdiction invoked
- Appeal from the High Court in judicial review proceedings brought under section 8 of the Law Reform Act and Order 53 Rules 3 and 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Harrison Makau Muasya v DOSH[2026] KEELRC 2627 (KLR)28 Sept 2026applied
- Goldfield Insurance Brokers Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E137 of 2026) [2026] KECA 711 (KLR)[2026] KECA 711 (KLR)2 Apr 2026
- Kiro v Chief Land Registrar; Gakuo & another (Interested Parties) (Environment and Land Judicial Review Case E018 of 2025) [2025] KEELC 7705 (KLR)[2025] KEELC 7705 (KLR)7 Nov 2025
- Sharpcut Designers Ltd v Public Procurement Administrative Review Board & 2 others (Civil Appeal E273 of 2025) (20 June 2025) (Reasons) [2025] KECA 1132 (KLR)[2025] KECA 1132 (KLR)20 Jun 2025applied
- Republic v Kisumu County Land Registrar & another; .Otieno & 29 others (Exparte) (Judicial Review Application E001 & E005 of 2023 (Consolidated)) [2024] KEELC 6577 (KLR)[2024] KEELC 6577 (KLR)3 Oct 2024applied
- Capital Markets Authority v Ogundo & 2 others (Civil Appeal 131 & 132 of 2018 (Consolidated)) [2023] KECA 1175 (KLR)[2023] KECA 1175 (KLR)6 Oct 2023followed
Cite this brief
#Cite this brief
Caselaw, "OJSC Power Machines Ltd & another v Public Procurement Administrative Review Board Kenya & 3 others (Civil Appeal 28 of 2016) [2017] KECA 386 (KLR)", Case Analysis (2017). Civil Appeal No. 28 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/386/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.