Ederman Property Limited v Lordship Africa Limited & 2 others [2019] KECA 684 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a public procurement contract signed before the 14-day challenge window ends is illegal and cannot stand.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Review Board where a contract has already been signed
The Review Board erred in declining jurisdiction solely because a contract had been signed; it had a duty first to determine whether the contract was signed in accordance with Section 135 of the Act.
Section 135(3) requires a contract to be signed not before fourteen days have elapsed following notification of award, within the tender validity period. The Board made no reference to whether the contract allegedly signed complied with Section 135. Declining jurisdiction without that inquiry amounted to improper deprivation of jurisdiction, which is as bad as acting without or in excess of jurisdiction. The Judge was entitled to correct that error in judicial review proceedings.
Legality of the contract signed before expiry of the challenge period
The contract signed on 17th August 2017, before fourteen days had elapsed from notification, contravened Section 135 of the Act and the rules of natural justice and was null and void.
Even taking the date of posting (4th August 2017) as the date of notification, the aggrieved bidder had until at least 18th August 2017 to lodge a request for review. Signing the contract on 17th August 2017 undermined the statutory challenge window and natural justice. A contract entered in contravention of the law is illegal, against public policy and cannot be allowed to stand.
Scope of judicial review after the Constitution, 2010 and the Fair Administrative Action Act
The High Court acted within its mandate: the issues it examined were process issues, and even on the merits its approach was permissible under the expanded grounds of review.
Judicial review traditionally concerns the decision-making process rather than merits, but since the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015 the grounds of review have been expanded. The defects found here - differential notification of bidders, breach of Section 135, and the Board's improper deprivation of its own jurisdiction - were process issues squarely within judicial review.
Differential notification of bidders
The 3rd respondent breached the Act and public policy by notifying the successful bidder through an efficient direct process while sending the unsuccessful bidder's notification by registered post, and by signing a contract before the challenge period expired.
Section 126(4) of the Act requires simultaneous written notification to unsuccessful bidders with reasons. The County chose different methods of notification which the statute and principles of reasonableness did not allow, amounting to preferential treatment of the appellant and a breach of natural justice.
Legal principles established
#- Before the Public Procurement Administrative Review Board declines jurisdiction under Section 167(4)(c) on the ground that a contract has been signed, it must first investigate whether the contract was signed in accordance with Section 135 of the Public Procurement and Asset Disposal Act; the mere fact that a contract has been signed does not necessarily deprive the Board of jurisdiction.
- A procuring entity may not sign a procurement contract before the expiry of the fourteen-day period allowed to aggrieved bidders to lodge a request for review; a contract so signed is in breach of Section 135 of the Act, is illegal and against public policy and cannot stand.
- A procuring entity may not use different methods of notification towards a successful bidder and unsuccessful bidders; where a breach of statute is brought to the attention of the court, the court must investigate it.
- While judicial review traditionally concerns the decision-making process and not the merits, since the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015 the grounds of review have been expanded, permitting the High Court to examine whether the process was undertaken within the law.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Miscellaneous Application No. 589 of 2017
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court's judicial review decision (Constitution of Kenya, 2010); appeal against orders of certiorari and mandamus issued by Aburili, J
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.
- Public Procurement Administrative Board v Four M Insurance Brokers Limited & 3 others (Civil Appeal E1009 of 2023) [2024] KECA 79 (KLR)[2024] KECA 79 (KLR)9 Feb 2024followed
Cite this brief
#Cite this brief
Caselaw, "Ederman Property Limited v Lordship Africa Limited & 2 others [2019] KECA 684 (KLR)", Case Analysis (2019). Civil Appeal No. 35 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/684/eng@2019-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.