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Court of AppealDismissedCivil Appeal No. 69 of 2015· [2017] KECA 703 (KLR)

Ethics and Anti-Corruption Commission v Horsebridge NetworksSystems (Ea) Ltd & another [2017] KECA 703 (KLR)

Court of Appeal of Kenya
10 March 2017
4,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an unchallenged Public Procurement Review Board decision is final and public entities must comply with it.

What this practically means

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Executive summary

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This appeal arose from a procurement dispute over Central Bank of Kenya tender no. CBK/46/2012/2012 for an integrated security management system. Horsebridge Networks, the lowest evaluated bidder, obtained two Review Board decisions in its favour, the second (4th January 2013) setting aside the Tender Committee's termination of the tender and awarding it to Horsebridge. The contract was awarded but its execution was halted by EACC investigations into the tendering process and into the then CBK Governor. The High Court (Korir, J.) granted mandamus compelling the CBK to execute the contract; the EACC, joined as interested party, appealed on 16 grounds, principally that the Tender Committee's termination had ousted the Review Board's jurisdiction under Sections 36(6) and 93(2)(b) of the PPDA, and that the Board's decision was a nullity. The Court of Appeal (W. Karanja, Koome and G.B.M. Kariuki, JJ.A) dismissed the appeal. It held that judicial review is a restrictive, sui generis jurisdiction concerned with process, not merits; that under Section 100 of the PPDA the Review Board's decision, not appealed against, was final and binding; that ousting provisions must be construed strictly; and that the CBK, as a public entity, had a statutory duty to comply with the Board's directions which it could not circumvent. Mandamus was properly issued. The contract having been executed, the Court dismissed the appeal with no order as to costs.

Key legal issues

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01

Scope of judicial review over a Public Procurement Administrative Review Board decision

Holding

The High Court was confined to the procedure and process; the merits of the Review Board's decision could only be examined on appeal, and the trial Judge rightly declined to interfere with the merits.

Reasoning

Judicial review is discretionary and challenges process rather than merits. The Review Board acted within its Section 98 powers in substituting its decision and directing award. Complaints about whether the tender had been terminated or whether the decision was correct were matters for appeal under Section 100, which was not pursued. The appellant and 2nd respondent could not circumvent the decision by other means.

p. 7
02

Finality and binding effect of Review Board decisions under Section 100 PPDA

Holding

Since no appeal or judicial review was brought within fourteen days, the Review Board's decision of 4th January 2013 was final and binding on the 2nd respondent.

Reasoning

Section 100 makes a Review Board decision final and binding unless judicial review commences within fourteen days, with an appeal lying to the High Court. Neither avenue was pursued by the procuring entity. The finality applies to intra vires decisions; the appellant's argument that the decision was a nullity was a merits question for appeal, not for the judicial review court.

p. 8
03

Whether mandamus properly issued against the 2nd respondent

Holding

The mandamus was properly granted: the 2nd respondent had a clear statutory duty as a public entity to comply with the Review Board's directions, and mandamus compels performance of such a public duty.

Reasoning

Mandamus lies where there is a specific legal right and a clear, unqualified statutory duty. The 2nd respondent is a public entity under the PPDA with a statutory obligation to comply with the Review Board's decision. Its reasons for halting execution (pending EACC investigations) could not be conjured to circumvent the decision; the lawful course was appeal or judicial review against the Review Board's decision.

p. 8

Legal principles established

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  • A High Court sitting in judicial review examines the decision-making process, not the merits of the decision; complaints about the correctness of a Review Board decision lie only by appeal
  • A Review Board decision under Section 100 of the PPDA not appealed against or set aside on judicial review within fourteen days is final and binding on the parties
  • An ousting provision such as Section 36(6) of the PPDA must be construed strictly; the jurisdiction of the Review Board and the court is ousted only where termination was communicated to bidders before award

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Public Procurement and Disposal ActSection 36(6)
  • Public Procurement and Disposal ActSection 93(1)
  • Public Procurement and Disposal ActSection 93(2)(b)
  • Public Procurement and Disposal ActSection 98
  • Public Procurement and Disposal ActSection 100(1) and (2)
  • Public Procurement and Disposal ActSection 2 (overarching objectives)
  • Public Procurement and Disposal ActSection 38(1)

Cases cited (11)

  • Anisminic Limited vs. Foreign Compensation Commission
    [1969] 2 A.C 147
  • Macfoy vs. United Africa Company Ltd.
    [1961] 3 ALL E.R 1169
  • Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others
    [2012] eKLR
  • Republic vs. Public Procurement Administrative Review Board & 2 Others exparte Selex Sistemi intergrati
    [2008] eKLR
  • Coffee Board of Kenya vs. Thika Coffee Mills Limited & 2 others
    [2014] eKLR
  • Ransa Company Ltd vs. Manca Francesco & 2 others
    [2015] eKLR
  • Associated Provincial Picture House vs. Wednesbury Corporation
    [1948] Vol. 1 KB pg 223
  • Captain (Rtd) Charles Masinde vs. Augustine Juma 8 others
    [2016] eKLR
  • National Social Security Fund Board Trustees & 2 others vs. Central Organization Of Trade Unions (K)
    [2015] eKLR
  • Makupa Transit Shade Limited & another vs. Kenya Ports Authority & another
    [2015] eKLR
  • Manyasi v Gicheru & 3 others
    [2009] KLR 687
On appeal from
High Court of Kenya at Nairobi
JR Misc. Appl. No. 87 of 2014
Jurisdiction invoked
First appellate jurisdiction over the High Court in judicial review proceedings (Public Procurement and Disposal Act framework; appeal as of right against discretionary judicial review orders)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v Horsebridge NetworksSystems (Ea) Ltd & another [2017] KECA 703 (KLR)", Case Analysis (2017). Civil Appeal No. 69 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/703/eng@2017-03-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.