Hoggers Limited v Public Procurement Administrative Board & 2 others [2017] KECA 476 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that losing parties must appeal procurement board decisions on merit, not use judicial review to reopen them.
What this practically means
#Executive summary
#Key legal issues
#Whether the admission of supplementary grounds of review was a jurisdictional or merit question
The Court held it was both: the Board determined admissibility and the grounds contributed to its substantive decision, so a dissatisfied party's remedy was an appeal, not judicial review
The Board had pronounced the supplementary grounds not new or fresh and merely elaborative of the original grounds, then considered them in reaching its decision to award the tender to the 2nd respondent. Because admissibility was intertwined with the merits, the appellant's challenge went beyond the decision-making process to the merits, which is not the province of judicial review.
Whether the Board's decision was grossly unreasonable
The Court applied the Wednesbury standard and held the appellant failed to show the decision was arbitrary or unreasonable
Applying Associated Provincial Picture House v Wednesbury Corporation, the Court noted that a decision-maker acts unreasonably only where it directs itself improperly in law, fails to consider relevant matters or considers irrelevant ones. The Board considered all the material before it and arrived at a decision it was satisfied was right, which did not meet that threshold.
Whether execution of the contract while a stay application was pending barred the appeal
The appeal was overtaken by events; the 3rd respondent acted in obedience to the High Court order, and no stay had been granted, so the respondents did not 'steal a match'
The Court found that although the appellant had filed an application for stay of the procurement proceedings and implementation of the impugned decision, no such order had been granted. The signing of the contract on 28th January, 2016 was consequential to the judicial review order directing the 3rd respondent to award the tender to the 2nd respondent, and the 3rd respondent acted in obedience to that order.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; where a party is dissatisfied with the merits of a procurement review board decision, the remedy is an appeal, not judicial review
- Where admitted supplementary grounds merely elaborate grounds already filed in time and introduce no fresh matters, quashing the decision on admissibility grounds serves no useful purpose
- An appellate court will not interfere with a finding by an administrative body unless a party demonstrates the decision was arbitrary or unreasonable in the Wednesbury sense
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant shall bear the costs of the appeal as well as the costs of the High Court proceedings
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Application No. 477 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in judicial review proceedings (Constitution of Kenya, 2010, and the Court of Appeal's appellate jurisdiction; no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Hoggers Limited v Public Procurement Administrative Board & 2 others [2017] KECA 476 (KLR)", Case Analysis (2017). Civil Appeal No. 170 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/476/eng@2017-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.