Buffet Park Ltd v Republic & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that winning a government tender means nothing until a written contract is signed within the tender validity period.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to an order of mandamus absent an executed written contract under section 68(3) of the Public Procurement and Disposal Act
The High Court correctly declined mandamus because no written contract or lease was ever executed within the tender validity period; the successful bid conferred no enforceable statutory or contractual duty on the procuring entity, which remained free to award the contract to a third party.
The Court affirmed that the High Court in the prior judicial review proceedings had only quashed the Review Board's decision without affirming the tender award to the appellant, leaving the Council discretion to either formalise a lease notwithstanding the lapse of the tender period or award the contract to a third party. Since the tender period had expired and no written contract existed as required by section 68(3), no imperative public duty arose which mandamus could compel the Council to perform.
Alleged reversal of the decision in H.C. Misc. Application No. 22 of 2008
The trial Judge did not reverse the High Court's decision; she correctly observed that the High Court merely quashed the Review Board's ruling without affirming the tender award in the appellant's favour.
The Court found that the Judge's observation accurately characterised the effect of the earlier judicial review orders: certiorari quashed the Board's decision, leaving the procuring entity with a choice between executing a lease with the appellant notwithstanding the lapse of the tender period, or offering the contract to a third party. Nothing in that finding reversed or misapprehended the earlier decision, so the ground failed.
Application of section 68(3) of the Public Procurement and Disposal Act
The trial Judge correctly construed and applied section 68(3), under which a tender process is valid only if executed in writing within the stipulated tender period.
The Court revisited the Judge's reasoning against section 68(3) and found no error in her interpretation or application of the provision. Because no lease was executed between the appellant and the Council, the statutory prerequisite for a valid tender was not met, reinforcing the conclusion that the Council owed the appellant no duty enforceable by mandamus.
The conditional order of prohibition granted by the trial Judge
The conditions attached to the order of prohibition were misplaced, but being severable, they were inconsequential to the ultimate result of the appeal.
The Court held that the scope of prohibition does not extend to correcting a wrong decision on the merits or the course adopted by a body; it lies only for excess or absence of jurisdiction or breach of natural justice. The condition requiring a fresh procurement process therefore went beyond the proper reach of prohibition, but because the appeal failed overall and the condition was severable, no consequential relief followed.
Legal principles established
#- Mandamus can only command what the party against whom it is sought is legally bound to perform; where the statute leaves discretion as to mode of performance, mandamus cannot command the duty to be performed in a specific way.
- An appellate court may interfere with a trial judge's exercise of judicial review discretion only where the judge misdirected herself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- An award of a tender is not enforceable by mandamus unless and until it is reduced to a written contract as required by section 68(3) of the Public Procurement and Disposal Act, 2005; a successful bidder has no statutory duty to enforce after expiry of the tender validity period.
- An appellate court hearing a first appeal must re-evaluate the evidence tendered before the trial court and reach its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- J.R. Misc. Application No. 222 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010); no specific provision quoted in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Buffet Park Ltd v Republic & 2 others", Case Analysis (2019). Civil Appeal No. 189 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/768/eng@2019-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.