Ethics and Anti-Corruption Commission v Horsebridge NetworksSystems (Ea) Ltd & another [2017] KECA 703 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of judicial review over a Public Procurement Administrative Review Board decision
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.
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.
Finality and binding effect of Review Board decisions under Section 100 PPDA
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.
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.
Whether mandamus properly issued against the 2nd respondent
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.