Energy Regulatory Commission v SGS Kenya Ltd & 2 others (Civil Appeal 341 of 2017) [2018] KECA 616 (KLR)

The Judge's language about evidence being 'clear', 'cogent', 'substantial', 'real' and 'tangible' showed he was weighing the evidence as on appeal. Following the long line of authority including OJSC Power Machines and Chief Constable v Evans, the Court held that the true province of judicial review is procedural impropriety, and that a public body has jurisdiction to err on the merits without attracting certiorari. Only a complete absence of evidence amounting to Wednesbury irrationality would justify interference.

The Board made a categorical finding that the termination was based on the evaluation committee's general observations by technically qualified members, and considered the wider public interest advantages of the new technology, including curbing fuel adulteration. The Judge hoisted his own sense of reasonableness above that of the Board. Following Wednesbury, only 'something overwhelming' justifies intervention, and that threshold was not met.

Mandamus against public bodies is limited to performance of a clear and unqualified statutory duty. Since the statute and tender documents recognised termination, and the accounting officer retained discretion to accept or reject the committee's recommendation, the order directing award to SGS usurped powers belonging to other entities and denied the accounting officer a statutory discretion.

The Board has wide powers under section 98 of the Act, may engage experts under Reg. 89, and the administrative review it conducts is in nature an appeal. Kenya Pipeline v Hyosung Ebara establishes that its decisions within jurisdiction should not be lightly interfered with; the Judge ought to have been more circumspect.