Ecotact Limited t/a Iko Toilets v Nairobi City County [2018] KEELC 242 (KLR)
The bottom line
#Kenya's High Court quashed a Kenya Power prepaid meter tender because the board bypassed its tender committee, but no damages were awarded.
What this practically means
#Executive summary
#Key legal issues
#Whether publication of pre-qualification notice in the newspapers and on the website, without availing the bidding documents at the same time, constituted inadequate publication under section 28(3)(b) of the Act
The Court held that the publication was adequate
The Court held that the publication of the notice in the newspapers and on the website was adequate, was sufficient to create awareness and attract interest, and that the requirement for simultaneous availability of the bidding documents is not mandatory and is not an infraction of the law.
Whether the applicants were entitled to a pre-qualification notwithstanding failure to attach a tax compliance certificate as required by section 32(1)(c) of the Act
The Court held that a tax compliance certificate is a mandatory requirement
The Court held that the requirement of a tax compliance certificate is a legal requirement that must be adhered to, and that the applicants cannot benefit from their own failure to comply with the law. The Court, however, held that the respondents had provided all necessary documents.
Whether the evaluation of the applicants' bid was manifestly unfair and in breach of natural justice and fair administrative action
The Court held that the applicants were given an opportunity to clarify their bids and were not treated unfairly
The Court held that the requirement to provide clarifications and details of their bids does not amount to giving an unfair advantage. The Court held that the applicants were treated in the same way as the other bidders, and there was no evidence that they were treated unfairly. The Court therefore declined to find that the rules of natural justice had been breached.
Whether the decision of the Board to approve the direct award of tender to the 2nd and 3rd respondents was valid
The Court held that the Board's decision to approve the direct award of tender to the 2nd and 3rd respondents was null and void
The Court held that the Board's decision was void ab initio as it was made without a recommendation from the tender committee, in breach of section 40(3) of the Act and Articles 10, 201, 227, 232 and 259 of the Constitution. The Court also held that the award was not cost-effective and thus violated Article 227 of the Constitution.
Legal principles established
#- The right to fair administrative action under Article 47 is specifically enforced under section 8 of the Fair Administrative Action Act
- A reading of the Constitution is permitted, even when not explicitly sought, provided it is necessary to determine whether rights have been infringed
- Public procurement is a public function subject to constitutional values and principles under Article 10 and Chapter Twelve of the Constitution
- Judicial review relief may be denied where the breach complained of has not compromised the integrity of the procurement process
Court orders
#- 1.An order of certiorari does issue removing into this Court and quashing the decision of the interested party communicated via Gazette Notice No. 8550 and published on 24th May, 2013 and/or any other decision resolving to pre-qualify the applicants herein for the tender of supply of meters and to award the said tender to the 2nd and 3rd respondents
- 2.An order of prohibition does issue prohibiting the interested party from concluding any contract with the 2nd and 3rd respondents based on or pursuant to the impugned pre-qualification and award of the tender
- 3.An order of mandamus does issue compelling the interested party to conduct the tender for the pre-qualification of contractors for supply of pre-paid meters within ninety (90) days of this judgment in line with the Constitution and the Act
- 4.Interested party and respondents are directed to bear their own costs
- Jurisdiction invoked
- Order 53 rules 1, 3 and 4 of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act and Articles 10, 22, 23, 47, 48, 50, 159, 165, 201, 232 and 259 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ecotact Limited t/a Iko Toilets v Nairobi City County [2018] KEELC 242 (KLR)", Case Analysis (2015). Nairobi Judicial Review Miscellaneous Application No. 467 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/242/eng@2018-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.