Ernie Campbell & Company Limited v The National Housing Corporation
The bottom line
#Kenya's Court of Appeal dismissed a contractor's tender challenge because the project had already been awarded to someone else, making the case pointless.
What this practically means
#Executive summary
#Key legal issues
#Mootness of the appeal
The appeal was dismissed as overtaken by events because the tender had been re-advertised and awarded to a third party, M/s Endveavours Construction Company Limited, rendering the prayers for certiorari, prohibition and mandamus futile.
The Court noted that the tender was re-advertised on 29th November 2016 and awarded on 22nd February 2017 to a third party. Relying on Tanzania Roads Agency v Kondan Singh Construction, Alcon International and Environment Action Network Ltd v Joseph Eryau, it held that granting the orders sought would be futile and tantamount to an academic exercise, since court orders must have practical effect and be capable of enforcement.
Applicable procurement regime
The Public Procurement and Disposal Act, 2005 (the repealed Act) governed the proceedings, because the procurement commenced before the Public Procurement and Asset Disposal Act, 2015 came into operation on 7th January 2016.
The Court applied the transitional provisions of the 2015 Act, which preserved the prior law for proceedings commenced before the commencement date. The appellant's reliance on section 63 of the 2015 Act was therefore misplaced, and the termination was properly assessed under section 36 of the repealed Act.
Validity of the termination under section 36 of the repealed Act
The termination of the procurement proceedings was permitted under section 36 of the repealed Act, whose ouster clause bars review by the Review Board or a court.
The evaluation reports of 11th March 2014 and 12th March 2015 had identified different successful bidders (Dickways Construction Company Limited and the appellant respectively), and an incoming management terminated the proceedings. Section 36(6) of the repealed Act expressly provided that a termination under that section shall not be reviewed by the Review Board or a Court. No written contract had been formed under section 68(3).
Legal principles established
#- A procuring entity may validly terminate tender proceedings under section 36 of the repealed Public Procurement and Disposal Act, 2005 where evaluation reports identify different successful bidders, and such termination is insulated from review by the Review Board or a court
- Procurement proceedings commenced before 7th January 2016 continue to be governed by the repealed Public Procurement and Disposal Act, 2005 by virtue of the transitional provisions
- No contract is formed in public procurement until a written contract is entered into; a letter of notification of award does not conclude the contract
- Courts will dismiss appeals whose reliefs have been overtaken by events rather than pronounce academic determinations
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Misc. Application No. 48 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the High Court in a judicial review application (statutory appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ernie Campbell & Company Limited v The National Housing Corporation", Case Analysis (2019). Civil Appeal No. 281 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/67/eng@2019-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.