Lordship Africa Ltd v Nairobi City County
The bottom line
#Kenya's Court of Appeal confirmed that procurement disputes must go to the Public Procurement Administrative Review Board first, before anyone can rush to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the exhaustion issue was properly before the High Court though unpleaded
Yes. It was raised as a matter of law by NCC in written submissions and Lordship Africa responded without objection, leaving it to the court for decision.
The Court applied the long-standing principle in Odd Jobs v Mubia that a court may decide an unpleaded issue where, from the course of the proceedings, the issue was left to it for determination. Lordship Africa filed supplementary submissions responding to the exhaustion point without complaining that it was unpleaded. The trial court was invited, and was obliged, to determine it. The challenge came too late.
Whether the dispute was a procurement dispute reviewable under section 167 of the 2015 Act
Yes. The award was subject to negotiation and contract formation; the second stage of the two-stage procurement process was incomplete when the award was terminated.
The Notification of Award expressly recommended the award subject to negotiation and contract formation. Negotiations over the Joint Venture Agreement continued through 2016 and were never concluded before the termination letter of 4th April 2018. The grievance was that Lordship Africa was likely to suffer loss or damage from a breach of duty by a procuring entity during the second stage, squarely within section 167, so the Review Board was seized of the dispute.
Whether section 167(4)(b) barred recourse to the Review Board
No. That provision excludes terminations under section 63; NCC did not purport to terminate under section 63, so the exclusion did not apply.
The Court read the impugned High Court decision holistically and found that although section 63 was cited, the trial judge made no finding that termination occurred under section 63. NCC terminated for breach of the RFP terms relating to consortium integrity, not for any of the reasons in section 63. Section 167(4)(b) therefore did not bar the Review Board route, and the exhaustion finding stood.
Legal principles established
#- A court may base its decision on an unpleaded issue of law that the parties were given an opportunity to address at trial
- Where a procurement process has not been completed (negotiations and contract formation outstanding), a dispute arising from termination of the award is a procurement dispute subject to administrative review under section 167 of the Public Procurement and Asset Disposal Act, 2015
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya (Judicial Review Division)
- Judicial Review application re cancellation of Tender No. NCC/T/SS&H/098/2015-2016
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act / Civil Procedure Act (not expressly stated in the judgment); appeal against dismissal of a High Court judicial review application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lordship Africa Ltd v Nairobi City County", Case Analysis (2024). Court of Appeal at Nairobi (Civil Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1432/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.