Republic v Public Procurement Administrative Reveiw Board & 1 other

AND THE ACCOUNTING OFFICER, KENYA BUREAU OF STANDARDS ........................................................................ EX PARTE APPLICANT KENYA BUREAU OF STANDARDS ................................. EX PARTE APPLICANT RULING 1. I have perused the Originating Motion dated 3/11/2025 filed under certificate of urgency. I am alive to the fact that all public procurement matters are time bound, to be heard and determined within 45 days of the date of filing into court. 2. Therefore, whereas the Originating Motion is brought under certificate of urgency, the urgency in these types of proceedings is inherent and the court does not have to certify the matter as urgent before hearing the matter expeditiously. 3. That said, where there is a prayer for interim relief or stay of the impugned decision, and the application is brought under certificate of urgency, the court may certify the matter as urgent and first consider the urgency involved on account of the prayer for interim relief or stay. 4. In the instant matter, I have perused the originating motion dated 3/11/2025 and obviously, there is no prayer for interim relief or stay of the impugned decision. 5. It is true that in the certificate of urgency the applicant at paragraphs 7 & 8 states that: “ 7. 8. 6. That without the benefit of an interim order of stay of the decision of 27th October, 2025, will crystallise to the great prejudice of the exparte applicant as…. a. … b. … That it is desirous of this Honourable Court to consider the subject originating motion and in the intervening period, grant the interim order prayed for in the interest of justice”; I observed that in the main originating motion, the applicant has not sought for any interim relief or prayer for stay”; However, the applicant has in prayer 2 sought as follows: “ 2. That pending the hearing and determination of the present originating motion, this Honourable Court be pleased to “set Aside” the entire decision of the 1st Respondent herein delivered on 27th October, 2025 in PPARB Application No.98 of 2025 World Saudization, Certification &Testing Group (Shenzen) Co. Ltd vs. The Accounting Officer, Kenya Bureau of Standards & Kenya Bureau of Standards”. 7. The 3rd prayer is for certiorari to issue to quash the impugned decision. 8. “setting Aside” cannot be interpreted in any other manner to mean or connote stay or an interim relief. It is a final order of the court upon the court hearing and determining the dispute on its merits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15825/eng@2025-11-05 2

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9. This court cannot grant such a final order in the interim as the court would have determined the Originating Motion substantively without according the parties a hearing. 10. In the circumstances, I am unable, on the material placed before the court, to certify the Originating Motion dated 3/11/2025, as urgent. I am also unable to grant any interim relief or order of stay as no such relief was sought in the application. This court cannot frame its own orders and grant them. It is bound by the parties’ pleadings. This is so, considering that the proceedings are exclusively initiated under the Fair Administrative Action Act and Rules where no automatic stay can issue exparte, unlike the provisions of Order 53 Rule 1(4) which inherently gives discretion to the court to grant stay upon granting leave to apply. 11. Accordingly, I make the following orders: 1. The Originating Motion dated 3/11/2025 is not certified urgent. 2. As no interim relief/stay is sought, the court cannot grant orders which are not sought; and neither can it grant final orders of “setting aside” of the impugned decision/orders in the interim. 3. The applicant is directed to serve the Originating Motion dated 3/11/2025 upon the Respondents and the interested parties forthwith. 4. As these are timebound proceedings, the respondents and the interested parties have, each, cumulative five (5) days of the date of service to file and serve their responses to the Originating Motion. 5. The applicant shall then have five(5) days of the date of service within which to file and serve a further affidavit of need arises, together with brief written submissions 6. Thereafter, the respondents shall have cumulative five (50 days of the date of service within which to file and serve their supplementary affidavits, if need arises, together with their brief submissions. 7. Parties to appear on 25/11/2025 for brief oral highlights if need be and for the court to fix a judgment date. 8. It is so ordered. DATED, SIGNED & DELIVERED IN CHAMBERS AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2025 R.E. ABURILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15825/eng@2025-11-05 3

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