Chief Executive Officer, the Public Service Superannuation Fund Board of Trustees v CPF Financial Services Limited & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that procurement officials who delay tenders to frustrate a winning bidder can be overruled, and the bidder must get the contract.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review under the 2010 Constitution
Judicial review has expanded beyond the common law process-only review; in appropriate cases courts may enter the merits, grounded in Articles 22, 23 and 47 and the Fair Administrative Action Act.
The Court traced the shift from the traditional English position through Municipal Council of Mombasa to Suchan Investment and Kivuku Agencies, holding that common law JR is now fused with constitutional and statutory review, allowing limited merit review, though the court cannot substitute its own decision for that of the administrator.
High Court's supervisory jurisdiction over the Review Board
Under Articles 165(6) and 165(7), the High Court may make any order or give any direction it considers appropriate to ensure fair administration of justice, including directing the Board to re-hear a review with reference to court findings.
The Board is a quasi-judicial body over which the High Court exercises supervisory jurisdiction. The Court found the High Court did not usurp the Board's decision-making power or compel it to rule in a particular manner; its orders were necessary to give effect to Articles 10 and 227 and section 3 of the PPAD Act.
Board's power over an expired tender validity period
Although section 88 PPAD Act limits the accounting officer to one extension of not more than 30 days before expiry, the Board's powers under sections 28 and 173 include power to extend an expired tender's validity where an accounting officer frustrates the process.
Adopting Onyiego, J.'s reasoning in Rhombus Construction (upheld on appeal), the Court held section 88 binds only the accounting officer; the Board's broad powers under section 173 to give directions and manage the tendering system justify extension to prevent an accounting officer misusing section 88 to frustrate bidders, analogous to extension of time to appeal.
Binding effect of High Court orders on the Board
The Board's 6th June 2022 decision, being strikingly similar to the quashed 17th March 2022 decision, ignored the High Court's directions and was contrary to the 1st respondent's legitimate expectations.
The High Court had quashed the earlier decision and directed reconsideration taking into account its findings; the Board reproduced the same findings. The Court endorsed the judge's view that ignoring court orders would render supervisory powers impotent and judicial review useless as a remedy.
Legal principles established
#- The Review Board may, in appropriate circumstances, extend the validity of a tender whose validity period has expired where an accounting officer frustrates the procurement process.
- The Review Board is bound by orders and directions of the High Court issued in exercise of its supervisory jurisdiction, and failure to take them into account renders its decision amenable to being quashed.
- A rogue procuring entity cannot use the law to shield conduct that runs down the clock to defeat a successful bidder.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Appellant to issue the 1st respondent with the appropriate notification letter within 30 days from the date of the judgment
- 3.Appellant to complete the tender process in favour of the 1st respondent within 30 days from the date of issuance of the notification letter
- 4.Appellant to bear the 1st respondent's costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Misc. Application No. E086 of 2022
- Jurisdiction invoked
- Section 175(1) of the Public Procurement and Asset Disposal Act (judicial review of Review Board decisions); appellate jurisdiction over the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chief Executive Officer, the Public Service Superannuation Fund Board of Trustees v CPF Financial Services Limited & 2 others", Case Analysis (2022). Civil Appeal E510 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/982/eng@2022-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.