Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 170 of 2015· [2017] KECA 476 (KLR)

Hoggers Limited v Public Procurement Administrative Board & 2 others [2017] KECA 476 (KLR)

Court of Appeal
23 June 2017
2,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
The Court of Appeal (Okwengu, Musinga and Gatembu Kairu, JJ.A.) dismissed an appeal by Hoggers Limited against the High Court's refusal to quash a decision of the Public Procurement Administrative Review Board. The Board had, on a de novo rehearing directed by the High Court, admitted supplementary grounds of review filed by Suzan General Trading JLT out of time, holding they were not new grounds but merely elaborated issues already raised in the original timely request for review, and awarded a fast food outlet tender at Jomo Kenyatta Airport to the 2nd respondent. The appellant argued before the Court of Appeal that admissibility of the supplementary grounds was a jurisdictional question governed by Regulation 73 of the PPD Regulations and that the Board's decision was grossly unreasonable in the Wednesbury sense. The Court held that the admission of the supplementary grounds was both a jurisdictional and a merit issue: because the grounds contributed to the Board's substantive decision, a dissatisfied party's remedy lay in an appeal, not judicial review, and the appellant was impermissibly attacking the merits of the decision. Applying Wednesbury, the Court found the appellant had not demonstrated that the Board's decision was arbitrary or unreasonable. It further held that the appeal had been overtaken by events, since the contract signed between the 2nd and 3rd respondents on 28th January 2016 was executed in obedience to the High Court order and no stay had been granted, so the respondents did not 'steal a match'. The appeal was dismissed in its entirety with costs of the appeal and of the High Court proceedings awarded against the appellant. The High Court decision of Odunga, J. was affirmed.

Key legal issues

#
01

Whether the admission of supplementary grounds of review was a jurisdictional or merit question

Holding

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

Reasoning

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.

p. 4
02

Whether the Board's decision was grossly unreasonable

Holding

The Court applied the Wednesbury standard and held the appellant failed to show the decision was arbitrary or unreasonable

Reasoning

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.

p. 5
03

Whether execution of the contract while a stay application was pending barred the appeal

Holding

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'

Reasoning

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.

p. 5

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. 1.The appeal is dismissed in its entirety
  2. 2.The appellant shall bear the costs of the appeal as well as the costs of the High Court proceedings

Authorities

#

Legislation

  • Public Procurement and Disposal Act, 2005section 93(1)
  • Public Procurement and Disposal Act, 2005section 98(a)(b)(d)
  • Public Procurement and Disposal (Public Procurement Procedures) Regulations, 2006Regulation 73(2)(c)
  • Public Procurement and Disposal (Amendment) Regulations, 2013Regulation 20
  • Constitution of Kenya, 2010Article 152(d)

Cases cited (6)

  • Municipal Council of Mombasa v Republic and Umoja Consultants Limited
    Civil Appeal No. 185 of 2001
  • Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge and 9 Others
    [1997] eKLR
  • Republic v Public Procurement Administrative Review Board and 2 Others
    [2015] eKLR
  • Associated Provincial Picture House Limited v Wednesbury Corporation
    ALL ER [1947] 223
  • Mrao Limited v First American Bank Limited and 2 Others
    [2003] KLR 125
  • Premier Medical Operation Limited v Procurement and Chain Management Consortium
    Application No. 10 of 2010
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.