Sintmond Group Ltd v Procurement Administrative Review Board & 3 others (Civil Appeal E445 of 2026) [2026] KECA 1334 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that government buyers can verify your bid details but cannot use due diligence to secretly re-judge you by new, undisclosed criteria.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge correctly apprehended the nature of the Appellant's complaint before the High Court, i.e. whether the dispute was a legality challenge rather than a disguised merits appeal
- 2.Whether, in conducting due diligence under Clause 14 of the tender document and section 83 of the Public Procurement and Asset Disposal Act, the Procuring Entity and the Review Board remained within the lawful bounds of verification or crossed into impermissible post-bid re-evaluation by applying criteria not disclosed in the tender framework
- 3.Whether the Procuring Entity could, through due diligence, indirectly reintroduce client references as a mandatory or determinative requirement after MR-16 had been conclusively interpreted as disjunctive
- 4.Whether commencement of proceedings under section 175 of the Act triggers automatic suspension of the procurement process
Key legal issues
#Characterisation of the judicial review complaint
The Appellant's complaint was a legality challenge - that undisclosed criteria were applied under the guise of due diligence - and the learned Judge erred in treating it as an impermissible merits appeal, according excessive deference to the Review Board.
The Court reiterated that procurement judicial review is sui generis constitutional legality review. A court examining how tender criteria were applied to determine whether the decision-maker stayed within disclosed limits, acted rationally and complied with Article 227 remains squarely within judicial review. The High Court collapsed two distinct inquiries - whether due diligence power existed and whether its specific exercise was lawful - into one, and thereby failed to interrogate the Appellant's core legality complaint.
Nature and lawful limits of due diligence under section 83
Due diligence is a meaningful process of inquiry, verification and assessment, but it must remain anchored to disclosed tender criteria and may not introduce new evaluative benchmarks or modes of compliance.
Section 83 recognises that documentary compliance does not guarantee actual capacity, so due diligence permits substantive inquiry into authenticity, reliability and probative value of bidder material, including contacting counterparties and interrogating prior transactions. However, Article 227 requires bidders to know in advance the criteria by which they will be assessed; due diligence may therefore deepen scrutiny of disclosed criteria but not alter the tender architecture itself. Seven principles were distilled.
Effect of the settled disjunctive interpretation of MR-16
Once MR-16 was conclusively interpreted as disjunctive, neither the Procuring Entity nor the Review Board could lawfully reintroduce client references, directly or indirectly, as a mandatory or determinative requirement through due diligence.
The earlier rulings established the governing procurement rule for all subsequent stages. Threshold eligibility under MR-16 and successful due diligence are distinct inquiries, so due diligence powers survived; but those powers had to operate within the legal boundaries of the settled interpretation. The decisive fourth ground in the regret letter - demanding new or independent client references - restored a non-mandatory requirement through the back door, transforming verification into impermissible post-bid re-evaluation.
Automatic standstill under section 175 of the Act
Proceedings under section 175 do not automatically suspend procurement; only section 168 Review Board proceedings carry automatic suspension, consistent with Kiplagat & Okoth Advocates.
Parliament expressly provided for automatic suspension under section 168 while omitting comparable language under section 175, which cannot be accidental. Judicial oversight rights under section 175 are protected through express interim orders rather than automatic standstill. The issue did not materially affect the disposition of the appeal.
Appropriate remedy
The Court declined to substitute its own procurement assessment and instead remitted the dispute for fresh determination by a differently constituted panel of the Review Board, guided by the legal framework in the judgment.
The Court's task is to restore legality, not determine the successful bidder. Remittal to a differently constituted panel balances legality, institutional competence, procurement fairness and public interest, while preserving the full scope of lawful due diligence under section 83. The Review Board was directed to reconsider the Request for Review on the basis that MR-16 remains conclusively disjunctive and that due diligence must remain anchored to disclosed criteria.
Legal principles established
#- Due diligence under section 83 of the Public Procurement and Asset Disposal Act is a verification power, not a fresh evaluation power: it may deepen scrutiny of disclosed criteria but may not introduce new evaluative criteria, benchmarks, or modes of compliance after bids are submitted
- A procuring entity may not, under the guise of due diligence, demand documentary proof tied exclusively to one optional mode of compliance in a manner that nullifies an alternative mode expressly permitted by the tender document
- What a procuring entity is prohibited from doing directly under a tender requirement it may not do indirectly through due diligence; a settled judicial interpretation of a tender criterion binds all subsequent stages of the procurement
- Procurement judicial review is a sui generis form of constitutional legality review that permits merits-sensitive scrutiny without collapsing into a merits appeal; courts must examine how tender criteria were applied where legality is challenged
- Commencement of judicial proceedings under section 175 of the Act does not automatically suspend procurement; any suspension must arise from an express judicial order granting interim relief
Court orders
#- 1.The appeal is hereby allowed
- 2.The judgment of the High Court in Nairobi HCJR No. E101 of 2026 delivered on 20th May 2026 (Ouya, J.) is set aside
- 3.The decision of the Public Procurement Administrative Review Board dated 23rd March 2026 is quashed
- 4.The dispute is remitted to the Public Procurement Administrative Review Board for fresh determination before a differently constituted panel in accordance with the legal guidance in the judgment
- 5.Each party shall bear its own costs of the appeal and of the proceedings before the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Judicial Review Division
- HCJR No. E101 of 2026
- Jurisdiction invoked
- Appellate jurisdiction over the High Court's judicial review of the Review Board's decision (not expressly stated; the appeal lies from the High Court's exercise of judicial review jurisdiction)
Relief refused
#Automatic standstill/suspension of procurement upon commencement of section 175 proceedings
The Act deliberately provides automatic suspension only for section 168 Review Board proceedings; judicial proceedings under section 175 do not automatically suspend procurement absent express interim orders
Costs
Each party shall bear its own costs of this appeal and of the proceedings before the High Court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
due diligence is a verification power; not a fresh evaluation power
However, such due diligence must remain anchored to the disclosed tender criteria and may not be used to introduce fresh evaluative criteria, impose new benchmarks, or require compliance through a difierent category of evidence from that prescribed in the Tender Document
First, the appeal is hereby allowed.
Second, the judgment of the High Court in Nairobi HCJR No. E101 of 2026 delivered on 20th May 2026 (Ouya, J.) is hereby set aside.
Third, the decision of the Public Procurement Administrative Review Board dated 23rd March 2026 is hereby quashed.
Fourth, the dispute is remitted to the Public Procurement Administrative Review Board for fresh determination before a difierently constituted panel in accordance with the legal guidance contained in this judgment.
Fifth, given the long procedural history of this matter and the public interest dimensions involved, each party shall bear its own costs of this appeal and of the proceedings before the High Court.
The law does not permit a decision-maker to do indirectly what it is prohibited from doing directly
A commercially sensible criterion that is undisclosed remains unlawful if it materially afiects bidder evaluation
Issues in the judgment
#Internal inconsistency in the case number of the first High Court judicial review proceeding: the judgment refers to it as HCJR No. E351 of 2025 in one passage and E315 of 2025 in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sintmond Group Ltd v Procurement Administrative Review Board & 3 others (Civil Appeal E445 of 2026) [2026] KECA 1334 (KLR)", Case Analysis (2026). Civil Appeal from Nairobi HCJR No. E101 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1334/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.