Kivuku Agencies v Kenya Airport Authorities Accounting Office & another [2020] KECA 283 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when a tender's validity period expires, procuring entities may lawfully start a fresh tender instead of reinstating the losing bidder.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents acted unlawfully in cancelling the tender and re-tendering afresh instead of reinstating the appellant
The Board's orders were alternative: reinstate the appellant if the tender validity subsisted, or start the procurement afresh if the validity period had lapsed. The ninety-day validity had expired on 4th August 2017, before the Board's decision of 31st August 2017, so the respondents lawfully took the alternative option.
The Court held that the tender document indicated validity of ninety days from the date of issue, running from tender opening, not from any later award date as the appellant argued. Section 88 of the Act permits, but does not compel, extension of validity, and the appellant never requested an extension. Compliance with the Board's alternative order was neither illegal, irrational nor procedurally unfair under the Wednesbury standard.
Whether the High Court Judge erred in declining to award the appellant costs
The Judge properly exercised his discretion: each party had a measure of success, since the Judge quashed the fresh advertisement of 17th October 2017 (made outside the Board's fourteen-day window) and gave the appellant an opportunity to bid afresh, and there was no finding of a breach of procurement procedure.
Applying rule 31 of the Court of Appeal Rules and the Mbogo v Shah principles, the Court found no misdirection. Costs discretion must be based on good reason; the Judge's reasons were sound given the mixed outcome and the appellant's own failure to participate in the re-tender. The appellate court accordingly declined to interfere with the costs order.
Whether Articles 22, 23 and 47 of the Constitution and the Fair Administrative Action Act expand the grounds of judicial review
The constitutional provisions read with section 7 of the Fair Administrative Action Act allow a fusion of traditional common law grounds of review to include some merit review of administrative action, although the court cannot usurp the decision-making power of the administrative body but merely quash errors.
The Court acknowledged the paradigm shift articulated in Suchan Investment Limited, recognising that judicial review is no longer confined to the classic Wednesbury grounds. Nevertheless, the fusion does not permit the court to substitute its own decision for that of the administrative body; it may only quash errors in the decision-making process.
Legal principles established
#- A procuring entity may, at the discretion of its accounting officer, extend a tender validity period under section 88 of the Public Procurement and Asset Disposal Act; the provision is not mandatory and a bidder who makes no request for extension cannot fault the entity for opting to re-tender once the validity period lapses
- An appellate court will not interfere with a trial judge's discretion on costs unless the discretion was exercised injudiciously, on wrong principles, or on a misdirection resulting in injustice
- In deciding whether to interfere with an award of costs, an appellate court considers not only the conduct of the parties in the litigation but also the matters which triggered the litigation and the contribution of the party in whose favour costs were withheld to the causation of those factors
- An applicant for judicial review must demonstrate that the administrative decision complained of is tainted with illegality, irrationality or procedural impropriety
Court orders
#- 1.The appeal is dismissed
- 2.The respondents are not awarded costs of the appeal
- 3.Each party bears its own costs of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- Msa. Jud. Rev. Case No. 60 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (rule 31), on appeal from the High Court in an application for judicial review
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chief Executive Officer, the Public Service Superannuation Fund Board of Trustees v CPF Financial Services Limited & 2 others[2022] KECA 982 (KLR)9 Sept 2022followed
- Energy Sector Contractors' Association v Accounting Officer, Kenya Electricity Transmission Company Limited & another[2022] KECA 976 (KLR)26 Aug 2022
Cite this brief
#Cite this brief
Caselaw, "Kivuku Agencies v Kenya Airport Authorities Accounting Office & another [2020] KECA 283 (KLR)", Case Analysis (2020). Civil Appeal No. 132 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/283/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.