Sintmond Group Limited v Public Procurement and Administrative Review Board & 2 others

2. The application that is before the court for determination is the originating motion dated 4th November 2025 wherein the Applicant is seeking the following reliefs; 1. Spent. 2. That this Honorable Court be pleased to issue an order of Certiorari, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board (the 1st Respondent) dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender). 3. That this Honorable Court be pleased to issue an order of Prohibition, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1stRespondent dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender). 4. That this Honorable Court be pleased to issue an order of Certiorari, to remove into the High Court and quash and/or set aside any Contract in respect of Tender No. KGNSALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) illegally signed between the 2nd and 3rd Respondent and the Interested Party during the 14 days standstill period following the decision of the 1st Respondent dated 27th October 2025. 5. That pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue AN INTERIM ORDER FOR STAY, to stay the Execution and/or Implementation of the Decision of the 1st Respondent dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender). 6. That the costs of these proceedings to be provided for. 7. Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient. The Applicants Case; 3. The Applicant relies on the supporting Affidavit and the further Affidavit of Richmond Gatu Muriithi, the Director and Group Chief Executive Officer (CEO) of the Applicant. The Applicant was one of three bidders in the Tender, TENDER NUMBER - KGN-SALE-005-2025 - Tender For Sale Of Certified Emission Reductions (Cers) (Re-Tender) (Open International) The subject tender for the sale of Certified Emission Reductions (CERs) (commonly known as carbon credits) which was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 2

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re-advertised by the 3rd Respondent (hereinafter alternatively referred to as “the Procuring Entity”) on or around 27th May 2025. 4. The Tender was initially scheduled to close on 17th June 2025 at 1400Hrs East African Time but was extended through Addendum No. 3 to close on 24thJune 2025 at 1400Hrs East African Time. 5. The Applicant elected to participate in the Tender by preparing its bid in accordance with the Invitation to Tender and Instructions to Tenderers (ITT) and Bid Data Sheet, as issued under the Tender Document and observing the relevant legal provisions. 6. The Tender was closed on 24th June 2025 at 1400Hrs East African Time and the tender opening took place on the same date from 1430Hrs East African Time, with three (3) bidders submitting bids by the Tender Closing date, as summarized in the Tender Opening Minutes prepared by the 3rd Respondent for the price opening that took place on 24th June 2025 at 1440Hrs. 7. Under the Tender Document, evaluation was to be conducted in two stages namely the Mandatory Preliminary Evaluation and Financial Evaluation stage. 8. By a Letter of Regret dated 1st August 2025, the General Manager – Supply Chain of the 3rd Respondent informed the Applicant that its bid was not successful. 9. The reason given on why the Applicant’s bid was not successful was that; “Your Firm did not meet the following mandatory requirements as stipulated in the tender document; (i) Did not submit any client references nor evidence of transfer of any CERs to a client or on behalf of a client as required in MR16. The evidence submitted of purchase for Voluntary offset of the bidder’s own business activities is largely an insider dealing which does not meet the requirement of transaction with a client.” 10. That precipitated the filing of Request for Review Application No 90 of 2025 dated 6th August 2025 before the 1st Respondent citing breaches of various provisions of the Public Procurement and Asset Disposal Act, 2015 (hereinafter, “the Act”), the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter, “the Regulations”) and the Constitution of Kenya, 2010, especially Article 227. 11. Vide a Decision dated 28th August 2025, the Review Board’ allowed the Request for Review Application No. 90 of 2025, and made, inter alia, the following findings/observations; i. The Review Board established that the core issue in the Request for Review concerned the evaluation of the Applicant’s bid and specifically how the criteria Mandatory Requirement No. 16 was applied in evaluating and disqualifying the Applicant’s bid as non-responsive at the preliminary evaluation stage. ii. The Review Board noted that the Applicant had been declared non-responsive for failure to provide client references or demonstrate any transfer of CERs to a client or on behalf of a client as required under MR 16. That instead, the Applicant had provided evidence of CERs purchased for voluntary offsetting of its own business activities, which the 2nd and 3rd Respondents considered as an internal transaction that did not amount to a client-related transaction as envisaged under MR 16. iii. In examining the express wording of MR 16, the Review Board found that the same required bidders to demonstrate evidence of their past participation in emission reduction trading or transactions involving Certified Emission Reductions (CERs) or Verified Emission Reductions (VERs) and that to do so, a bidder was expected to provide documentation that showed it had successfully engaged in such transactions before and/or client references. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 3

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iv. The Review Board examined the use of the phrase “and/or” and held that this made the requirement disjunctive rather than conjunctive. It therefore held that a bidder could satisfy the requirement by producing evidence under the first part alone, or under the second part alone, or under both. That compliance was therefore not limited to fulfilling both conditions simultaneously; fulfilling one of them was sufficient for a bidder to meet the requirement under MR 16. (Refer to paragraph 110 of the 1st Respondent’s Ruling dated 28th August 2025). v. The Review Board found that with regard to the first part, the requirement envisaged the submission of Client References in the form of letters, references, or confirmations from clients to whom it had successfully traded or transacted Certified Emission Reductions (CERs/Voluntary Emission Reductions (VERs) in the past demonstrating that the bidder had participated in emission reduction transactions on behalf of, or in relation to, external parties. (Refer to paragraph 111 of the 1stRespondent’s Ruling dated 28th August 2025). vi. On the second part, the Review Board found that the requirement envisaged the submission of evidence of CER transfer, voluntary cancellation certificates, or certificates from successful purchase of CERs. That these were formal records or certificates issued upon the transfer or cancellation of CERs/VERs demonstrating that the bidder had completed such transactions successfully. (Refer to paragraph 112 of the 1st Respondent’s Ruling dated 28th August 2025). vii. The Review Board expressly held that MR 16 was therefore not conjunctive for using the expression “and/or” which denotes flexibility and that if the intent was to make it conjunctive, the requirement would have been drafted with the word “and” only, thereby compelling bidders to provide both client references and transaction certificates without exception. (Refer to paragraph 116 of the 1st Respondent’s Ruling dated 28thAugust 2025). viii. The Review Board, however, noted and recognized that MR 16 could be construed conjunctively and found from examining the 2nd and 3rd Respondent’s responses, clarifications as well as the addendum creating MR 16, that the net effect was that 2nd and 3rd Respondents had orchestrated an ambiguity. The Review Board held that being the authors of the documents relied in the tendering process by the Applicant, as per the contra-proferentem rule, the ambiguity could not be visited upon the Applicant. ix. The Review Board having already established that the requirement could be met disjunctively, examined the Applicant’s bid documents and held that “Based on the documents submitted, the Board finds no doubt that the Applicant satisfied Mandatory Requirement No. 16 with respect to its second part, given that the requirement is interpreted disjunctively, as explained above.” x. The Review Board thereafter noted that the present tender provided for only two stages of evaluation; preliminary evaluation and financial evaluation, excluding technical evaluation. Consequently, it recommended that the 2ndand 3rd Respondents conduct a due diligence on the successful bidder under Section 83 of the Act. xi. The Review Board noted that while Section 83 of the Act is not framed in mandatory terms, that the Tender Document at Clause 14 of the Bid Data Sheet contemplates due diligence at the discretion of the 3rdRespondent. It held that conducting the due diligence would be prudent to guarantee the quality of services, particularly where public interest is concerned, and would serve to ensure that the procurement proceedings are carried out in accordance with the principles of transparency and cost effectiveness as per Article 227. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 4

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xii. The Review Board in conclusion held that having considered the parties’ submissions and evaluated all the evidence presented that the evaluation of the Applicant’s bid was not conducted in accordance with the provisions of Section 80 (2) of the Act, read together with other applicable procurement laws and the tender document. Consequently, it allowed the Applicant’s Request for Review dated 6th August 2025 and rendered the orders as below. xiii. The 1st Respondent ordered that the 2nd Respondent be and is hereby directed to re-convene the Evaluation Committee and re-evaluate all tenders at the preliminary evaluation stage afresh in accordance with the provisions of the Tender Document, the Act, the Regulations 2020, the Constitution and taking into consideration the findings of the Board herein. xiv. The 1st Respondent ordered that the 2nd and 3rdRespondents are hereby directed to proceed with and conclude the tender proceedings concerning Tender No. KGNSALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) including the issuance of an award within 21days from the date thereof. xv. The 1st Respondent ordered that in view of the fact that the procurement process is not complete, that each party bear its own costs in the Request for Review. 12. It is the Applicant’s case that on 15th September 2025, 3 days before the 18th September 2025 deadline after which the 21 days given by the Review Board would have lapsed to comply with its directions the 3rdRespondent (also referred to as “the Procuring Entity”) wrote a letter whereby it declared their intention to carry out due diligence on the Applicant. 13. The letter stated as follows: “ …..In light of the above, you are hereby notified of the Tender Evaluation Committee’s intention to carry out due diligence on your firm for purposes of confirming and verifying your qualifications and determining whether your firm is qualified to be awarded the contract. The proposed date for this exercise is Wednesday 17th September 2025 10:00AM, at your business premises.” 14. On 17th September 2025, a team from the Procuring Entity visited the Applicant’s offices for the site visit as part of the due diligence exercise. 15. At the conclusion of the visit, the 3rd Respondent verbally requested that the Applicant sends them a structured invoicing format which the Applicant later sent. 16. On the same day of the site visit, 17th September 2025 at 2:57 PM, the Procuring Entity sent an Email to the Applicant as reproduced verbatim below: “ Following the due diligence exercise carried out on your firm earlier by our team, you are requested to avail the following information/documents as discussed: 1. Financial Capacity & Audited Accounts- Audited financial statements for at least last 2 years; 2. Financial Credit Lines/Access to Credit- An assurance letter stating their intended process of sale of CER to demonstrate commitment to meeting their financial obligation. 3. ESG Profile and Community Impact Commitment- To provide a brief on how they are undertaking and planning to undertake ESG frameworks. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 5

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4. Past Experiences - Provision of evidence of past professional experience through testimonials from previous assignments undertaken. 17. These will facilitate completion of the evaluation exercise within the required timelines hence we request you to avail the documents by tomorrow 18th September 2025 at 9:30 AM.” 18. Noting that it only had about 3 working hours to provide the document requested by the 3rd Respondent, the Applicant immediately responded to the 3rd Respondent’s requests through its Letter dated 17th September 2025 wherein it: a. Provided documents in proof of past experience by listing various projects executed as well as three (3) Testimonials from Clients with whom it has had previous assignments undertaken as requested, noting that the Email did not request client references specific to CERs or VERs but ‘past experience- provision of evidence of past professional experience. b. Provided its ESG Strategy Profile and Community Impact Commitment strategy as requested; c. Provided a Proposed Payment plan as well as accompanying Proposed Invoices as had been requested in the due diligence exercise; and d. Informed that it had furnished its audited accounts physically to the 3rd Respondent’s office. 19. The Applicant thereafter wrote a letter to the 3rdRespondent dated 19th September 2025 in which it sought clarification on the conduct of the due diligence exercise bearing in mind the fast-approaching deadline and that the Ruling and directions of the 1st Respondent did not make it mandatory to conduct the same. 20. The Applicant’s letter questioned the legality of the exercise vis a vis Section 83 of the Act and the Tender Documents. 21. In the said Letter, the Applicant raised its reservations that due diligence is meant to be based on the evaluation criteria as per the tender document and that the documents/information requested by the Procuring Entity were not part of the tender and therefore would not constitute information that is subject to the due diligence exercise purporting to be conducted by themselves. 22. The Letter questioned that the request for the documents amounted to creation of a fresh evaluation criteria in contravention to the law and resulted in unfairness on the bidder as it is not clear what due diligence criteria the Procuring Entity would be applying in examining the same. 23. The 3rd Respondent responded vide an Email sent on 19thSeptember 2025 whereby it acknowledged receipt of the documents and the Applicant’s Letter. The 3rd Respondent indicated that it would respond to the Applicant’s Letter officially and meanwhile stated that the due diligence documentary requirements including on specific experience must have been clarified during the due diligence exercise. Notably, the Procuring Entity was referring to the visit on 17th September 2025, which was 2 days before the Applicant’s Letter seeking clarification making it illogical and unreasonable that the alleged clarifications purportedly rendered during the visit would go to resolve the issues that were to be raised by the Applicant 2 days later in its Letter. 24. The Email also informed the Applicant that the Procuring Entity would be seeking an extension to the 21-day re-evaluation period from the 1st Respondent, but that nevertheless they expect a conclusion of the exercise soon. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 6

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25. This extension was sought on 19th September 2025, which was 1 day after the lapse of the 21-day deadline. 26. The 2nd and 3rdRespondents filed a Notice of Motion Application dated 18thSeptember 2025 with the 1st Respondent, seeking orders for extension of the time by 14 days for them to proceed with and conclude the tender proceedings as per order 3 of the directions of the 1st Respondent. 27. They also requested a grant of leave for due diligence to be conducted during such extended period. 28. Vide a Ruling dated 26th September 2025, the Review Board allowed the 2nd and 3rd Respondents’ Notice of Motion and granted them an extension of 14 days from 18th September 2025 to proceed with and conclude the tender proceedings including issuance of the Letter of Award. 29. Despite being afforded this extension, the 2nd and 3rdRespondents never responded to the clarifications sought on the issues raised in the Applicant’s Letter dated 19th September 2025. 30. Instead, the 2nd Respondent issued the Applicant with a Letter of Regret dated 29th September 2025 informing the Applicant that: a. “Based on the due diligence outcome, you failed to meet requirements on the specific/relevant experience, under MR 16 as you did not demonstrate previous successful participation in Emission Reduction trading/transactions of CER’s or VER’s as listed below: i. While reviewing the previous experience and your performance history it was noted that you were awarded Tender No.KGN-SALE-001-2024 for the Sale of 4,578,148 Certified Emission Reductions (CERs) by KenGen, valued at USD 32,047,036.00, on 7th May 2024. Despite being granted two extensions under the contract, and a stay order by the High Court you failed to honour its contractual obligations. ii. The current tender for 6,384,398 CERs incorporates the 4,578,148 CERs previously terminated for non-performance by your firm. This creates a direct and material nexus between your past failure and the subject matter of the present procurement. iii. In your submission you referred to a past transaction involving procurement of 200 CERs at a total USD 180 (KES 23,220) for internal business use. It was established that while this demonstrated limited participation in the carbon market, the volume and scale of the transaction are negligible compared to the magnitude of the current tender involving 6. 38 million CERs. This was therefore determined that such a transaction did not provide credible evidence of capacity to undertake a contract of this scale. iv. In addition, you did not furnish any new or independent client references demonstrating successful performance of comparable contracts. a. 31. The bidder awarded the contract is JV of Munja Trading Limited and Marwil Energy Holding AS at the total price of USD19,637,758.00 (Say United States Dollars Nineteen Million, Six Hundred and Thirty-Seven Thousand, Seven Hundred and Fifty-Eight) for 6,384,398 CER’s.” Being aggrieved by this decision of the 2nd Respondent the Applicant on 6th October 2025 filed Review Application No. 97of 2025 before the 1st Respondent, challenging the decision of the 2nd Respondent as contained in the 2nd Letter of Regret and seeking the following orders: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 7

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a. That the 2nd and 3rd Respondents’ decision awarding Tender Number: KGN-SALE-005-2025 Tender for Sale of Certified Emissions Reductions (CERs) (Re-Tender) to the Interested Party be annulled and set aside; b. That the 2nd and 3rd Respondents’ Letter of Regret dated 1stAugust 2025 notifying the Applicant that it had not been successful in Tender Number: KGN-SALE-005-2025 Tender for Sale of Certified Emissions Reductions (CERs) (Re-Tender) and notifying the successful bidder as the Interested Party be annulled and set aside; c. A declaration that the Procuring Entity failed to evaluate the Applicant’s bid at the mandatory preliminary evaluation stage in accordance with the criteria and procedures under the Tender Document and the provisions of the Act at Sections 79(1), 80(2) and 86(1) and the provisions of Regulation 74(1) of the Regulations; d. The Procuring Entity be directed to re-admit the Applicant’s bid as having met all mandatory requirements and proceed to undertake the second stage of evaluation, namely, financial evaluation, in line with pages 12 and 13 of the Tender Document e. The 2nd and 3rd Respondents be directed to proceed with the procurement to its logical conclusion by making an award to the responsive highest priced bidder in line with the its findings of the re-evaluation of the Applicant’s bid at the preliminary evaluation stage where the Applicant’s bid was unfairly disqualified; f. The 2nd and 3rd Respondents be compelled to pay the Applicant the costs arising from/and incidental to this Application; and g. The Review Board to make such further orders as it may deem fit and appropriate in ensuring that the ends of justice are fully met in the circumstances of this Request for Review. 32. Vide a Ruling dated 27th October 2025 (hereinafter referred to as “the impugned Decision”), the 1st Respondent rendered its decision thereby dismissing the Applicant’s Request for Review. 33. The Applicant is apprehensive that due to the time sensitive nature of this matter and the conduct of the 2nd and 3rdRespondent that 2nd and 3rd Respondent and the Interested Party may have illegally entered into the procurement contract or intend to do so before the lapse of the standstill period afforded to the Applicant under Section 175 (1) of the Act to pursue the Judicial Review reliefs sought herein and before the conclusion of this matter, thus the prayer for Certiorari to quash any such illegally signed contract and the prayer for interim order of stay and Prohibition to bar the 2nd and 3rd Respondents from implementing the decision of the 1st Respondent pending the hearing and determination of the substantive Originating Motion. 34. The Applicant is aggrieved by the 1st Respondent's impugned Decision and seeks to invoke the supervisory jurisdiction of this Honorable Court on grounds that the impugned Decision is tainted with irrationality and illegality in breach of the provisions of the Act as outlined hereunder: a. The 1st Respondent acted ultra vires Sections 173 of the Act as read together with Sections 60 and 70 (4) of the same by purporting to expand/amend the express provisions of the Tender Document- Clause 14 of the Bid Data Sheet- to include: i. A requirement that a bidder provide additional client references at the due diligence stage; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 8

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ii. A requirement that a bidder must provide evidence of previous participation in transactions involving CERs and VERs of a substantial capacity close enough to the capacity intended to be disposed in the subject Tender; and iii. Past performance of a bidder at due diligence despite the same not being a mandatory or technical requirement in the Tender Document. a. Disregard of Sections 80 (2) and (3) of the Act by defining Clause 14 of the Bid Data Sheet to include the requirements as elaborated above and in effect amending the tender documents to include extraneous evaluation criteria. b. The 1st Respondent erroneously failed to consider and appreciate the provisions of Section 83 of the Act by: i. Failing to consider that the 3rd Respondent unfairly introduced extraneous due diligence criteria that were not borne from the Tender Document; ii. Failing to consider the Applicant’s assertions that due diligence involved the strict confirmation and verification of documents already supplied by a bidder but not the imposition of new requirements and request for additional documents from a bidder. a. The 1st Respondent also erroneously failed to consider Section 70 (3) of the Act which requires that tender documents should have sufficient information to allow fair competition among bidders. The 1st Respondent failed to find that the 2nd Respondent had failed to specify its express requirements in the Tender Document but introduced extraneous criteria at the due diligence stage. 35. The 1st Respondent breached Article 47 of the Constitution and the provisions of the Fair Administrative Action Act when it failed to consider relevant issues raised before it. 36. These issues were: a. That the 3rd Respondent had disqualified the Applicant’s bid for providing client references that were not specific to CERs and VERs when it is the 3rd Respondent itself that failed to specify that the references it required were specific to CERs and VERs. b. Failing to consider the Applicant’s assertions on breach of the Fair Administrative Action Act as well as Articles 47 and 227 of the Constitution by the 3rd Respondent in the manner in which the due diligence exercise was conducted by itself. Specifically: i. Conducting a due diligence exercise via ambush- in that the Applicant was given minimal time (about 3 working hours) to make critical decisions and provide additional documents despite the 1st Respondent according enough time for the reevaluation of bids. This was meant to instill confusion and fear in the Applicant. ii. The 3rd Respondent offering the Applicant unreasonable timelines within which to furnish client references, despite the fact that the Applicant had met the requirements of the second part of MR 16 and not the first part on client references; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 9

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37. 38. iii. The failure by the 3rd Respondent to disclose the due diligence criteria to be applied thereby condemning the Applicant unheard on the issue of past performance which it raised for the first time in the second Letter of Regret; iv. Refusal to clarify the issues raised by the Applicant in its Letter dated 19th September 2025 seeking clarity on these issues and on the irregular and illegal manner in which the due diligence exercise was being conducted. This even despite the 3rd Respondent sending an Email stating that it would respond to the Letter formally. The 1stRespondent’s impugned Decision was also marred with unreasonableness and irrationality in: a. Making a finding in its decision dated 28th August 2025 that the Applicant had met all the tender requirements and then reneging on the same in the impugned Decision without offering any reasonable basis for such back-tracking; b. Making a finding at one paragraph of the impugned Decision that the consideration of the Applicant’s past performance by the 3rd Respondent was sub judice and ought not to have been considered in the Applicant’s bid’s disqualification and thereafter failing to invalidate the Applicant’s disqualification for this very reason but instead affirming that the Applicant’s nonperformance was a reasonable consideration by the 3rd Respondent; c. Making a finding based on issues and evidence not on record to wit, that the Applicant’s counsel had admitted in the proceedings in PPARB 90 of 2025, that it would have provided additional client references and that failing to do so by the Applicant meant that it did not have client references, when no such averments were made and is not captured anywhere in the record of Ruling dated 28th August 2025; d. Against its own decision dated 28th August 2025, the Constitution, Act & Regulations, long established precedence (including its own) allowed and sanctioned the introduction of extraneous evaluation criteria, parameters, documents and reasoning without any basis or foundation from within the Tender Documents. e. Admitting the Applicant was condemned unheard as pertains to past performance but still making a finding in favour of the 2nd and 3rd Respondents even with glaring abuse, unfairness, illegality and bias highlighted by the Applicant in its Request for Review. f. On the face of all the irregularities highlighted by the Applicant, still making a finding in favour of the 2nd and 3rdRespondents to award the Tender to the Interested Party leading to loss of public money to the tune of Kshs. 400,000,000 (Kenya Shillings Four Hundred Million) contrary to Section 3 of the Act, Articles 10, 201 and 227 of the Constitution of Kenya. g. Unequal and unreasonable application of the law (Article 227 and the Fair Administrative Action Act) by permitting unfairness and bias in the labelling the Applicant’s proof of capacity (200 CERs) as negligible without any disclosed parameters; and on the other hand turning a blind eye to the Interested Party’s which was also relatively minimal (in comparison to the Applicant’s) as all that was required was demonstration of ability to transfer the CERs in the subject Tender. The 1st Respondent’s impugned Decision is tainted with illegalities and/or irregularities, for the reason that the 1st Respondent erroneously, selectively, narrowly and/or superficially interpreted and/or applied the provisions of Sections 3, 79, 80 (2), 83 and 173 of the Act, as well as the Fair Administrative https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 10

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Action Act and Article 227 of the Constitution in blatant disregard of the Applicant’s pleadings and submissions, as demonstrated hereunder: i. That at paragraph 145 of the impugned Decision, the 1st Respondent stated the Applicant’s bid was disqualified following the due diligence exercise conducted on its bid at the Preliminary Evaluation Stage. In making this finding the 1st Respondent failed to appreciate and apply itself to the provisions of Section 83 of the Act as read together with Section 79 of the Act which require that due diligence be conducted on the bidder recommended for award, following evaluation at the preliminary, technical and financial evaluation stage as per the tender document. ii. That at paragraph 147 and 149 of the impugned Decision, the Review Board erroneously held that past performance formed part of the evaluation criteria in the Tender Document. The Review Board held that upon perusal of Clause 14 of the Bid Data Sheet the same made reference to the Procuring Entity’s obligation to establish the tenderer’s ability to perform the contract before award and at paragraph 149 claimed that clause 14 expressly provided for past performance as a criterion during due diligence. Therefore, it interpreted the clause as encompassing an assessment of past performance, holding that one of the most practical means of determining a tenderer’s ability to perform a future contract is by examining their previous performance in similar assignments. iii. That this finding was tainted with irregularity, illegality and was made ultra vires to the powers granted to the 1stRespondent under Section 173 of the Act for the reasons that; iv. a. Clause 14 of the Bid Data Sheet expressly provided that: “KenGen may at its own discretion conduct due diligence on the eligible bidders to establish their ability to perform the contract before the award of the contract”. b. The Law provides that only the accounting officer of a procuring entity has the mandate to provide, amend or vary the specify the requirements in a tender document as well as the evaluation criteria to be employed in comparison of bids. c. The 1st Respondent therefore acted ultra vires by purporting to assume/take over the mandate of the 2nd Respondent by holding that past performance was encompassed/ expressly provided under Clause 14 of the Bid Data Sheet despite the same not being present thereunder as shown in (i) above. d. This finding by the 1st Respondent also violated Section 80 (2) of the Act which requires that the evaluation of tenders must be confined strictly to the procedures and criteria set out in the tender documents and none other. In making a finding that introduced past performance as a requirement, the Review Board contravened the provisions of Section 80 (2) of the Act by introducing an extraneous evaluation criterion at due diligence stage. That at paragraph 153 and 155 to 159 of the impugned Decision, the 1st Respondent held that the Respondent’s fourth reason for disqualification was justified because the Applicant had failed to provide any new or independent client references evidencing successful performance of comparable contracts despite being given an opportunity to do so through the email of 17th September 2025. This finding was made in error of fact and law as demonstrated below; a. Firstly, the Email sent on 17th September 2025 did not require the Applicant to provide additional client references specific to CERs or VERs but ‘Past experience- provision https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 11

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of evidence of past professional experience’. As such, the Applicant, as asked by the 3rd Respondent in their email, provided three testimonials from clients with whom it had previously engaged in assignments successfully, these being positive reference letters from the following clients: i. The Kenya Power & Lighting Co. Ltd ii. Goldrock Engineering & Associates Ltd iii. Histoto Limited iv. Kenya Pipeline Company Limited - Certificate of Completion b. Despite the Applicant raising this lack of clarity in the Email sent on 17th September 2025, as the reason for the alleged non-compliance, the 1st Respondent completely ignored the same and instead propagated the irregularity by finding that the Applicant had indeed failed to provide additional client references as per the same Email, when in fact the Applicant provided three client references and an additional testimonial in form of a Certificate of Completion. c. Still on this issue, the 1st Respondent ignored the Applicant’s pleadings and evidence that in any event, the notice period afforded to it to procure client references or even client references specific to CERs was unreasonable noting that most of the players in the carbon credits market are international organizations and persons. The Applicant was in essence given about 3 working hours to provide new client references, noting the email request to it was sent at 2:47 p.m. and he was to respond by 9:30 a.m. the following day. d. The above notwithstanding, and without prejudice to any of the foregoing, the 1st Respondent at paragraph 110 of its Ruling dated 28th August 2025 (hereinafter referred to as the “previous Ruling”) clarified that the use of the words “and/or” meant that a bidder could meet the requirement under MR 16 by either providing client references (the first part of MR 16) or evidence of previous transactions (the second part of MR 16) or both. The Applicant’s bid was purely based on evidence of previous transaction (second part of MR 16) where it provided evidence of CERS transfer/Cancellation Certificates which was found by the Board to be a compliant submission in the previous Ruling. e. That based on the foregoing, it was therefore unreasonable and unfair to disqualify the Applicant for failure to provide references that would relate to the first part of MR 16, noting that it had only about 3 hours to provide those references, compared to the Interested Party that already had such references having had ample time to source them and include it in its bid before the tender closing date. f. At paragraph 119 of the same, the 1st Respondent buttressed that the disjunctive nature of the requirement created an ambiguity which could not be visited upon the Applicant. It consequently held that the Procuring Entity’s criteria had applied an extraneous requirement/ criterion that bidders needed to demonstrate experience through dealings with clients (client references), given the disjunctive structure of Mandatory Requirement (MR) No. 16. g. There being nowhere else in the Tender Document, other than under MR 16, where client references were required, the 1st Respondent having already found that the Applicant had fully complied with the MR 16 requirement, under the second part(see paragraphs 123 and 124 of the previous Ruling), the 1st Respondent was precluded by the rule of law and the rules of natural justice from reneging on this position to find that the Applicant’s bid lacked client references. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 12

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h. That in the face of its own final and binding decision stating that this requirement was applied extraneously (as noted in (ii) above) to then make a finding that the Applicant was rightly disqualified for failing to meet this very same extraneous requirement displays clear irregularity in the 1stRespondent’s decision. i. In any event and without any prejudice to the foregoing, the 1st Respondent ignored the Applicant’s pleadings and submissions that Section 83 of the Act does not contemplate the request by a procuring entity and furnishing by a bidder of additional documents at the due diligence stage or any other stage for that matter. j. That both the Procuring Entity and the 1st Respondent failed to address the Applicant’s assertions that Section 83 (2) only allows the seeking of confidential documents from third parties and not the bidders themselves. That the Respondents failed to appreciate that the Act and Regulations provide only for due diligence as entailing the confirmation and verification of documents already supplied by a bidder in its bid in fulfillment of already set out requirements, which provision is aimed at avoiding “due diligence by ambush” as happened in this case. 39. Section 76 as read together with Section 78 of the Act which do not permit/ contemplate the submission of additional documents by a bidder after the tender closing date but that a bidder is only evaluated on the documents as submitted in its bid before the tender submission deadline. 40. At paragraphs 155 to159 of the Review Board Ruling, the 1st Respondent went on to distinguish the Applicant’s case with its Ruling which the Applicant had cited in support of its case, in PPARB Application No. 158 of 2020 - On the Mark Security Limited vs The Accounting Officer, Kenya Revenue Authority and Skaga Limited , largely on the basis of its findings at paragraph 157 of the impugned Decision that “…the findings from the two external entities were positive, while only the report from the user was negative. Conversely, in the present case, the Applicant did not furnish references from a client.” These findings constitute abuse of due process and failure to consider relevant considerations, by ignoring relevant facts, pleadings and evidence before the Review Board as follows: a. Contrary to the erroneous assertions by the Review Board that the Applicant did not furnish references from clients, the Applicant provided references/testimonials from clients at the due diligence stage (see the clients in paragraph 36 (iv) (a)above) as asked by the Procuring Entity in its email, despite being given only about three (3) official working hours to provide the references. b. The statements by the Review Board that the Applicant provided no client references is an indication that it ignored material facts and evidence which were contained in paragraphs 36 to 41 of the Applicant’s Affidavit dated 2ndOctober 2025, paragraph 11 of the Applicant’s Further Affidavit dated 21st October 2025 and paragraph 63 to 67 of the Applicant’s Submissions dated 22nd October 2025 and in ignorance of the confidential documents provided by the 2ndand 3rd Respondents where it would have found the reference letters/testimonials provided by the Applicant. c. The reference letters/testimonials provided by the Applicant met the 3rd Respondent’s criteria in the email sent on 17thSeptember 2025 at 2:47 p.m., to provide ‘Past experience- Provision of evidence of past professional experience through testimonials from previous assignments undertaken.’, by the following day by 9:30 a.m. The 3rdRespondent’s email request for reference letters did not state anything about the letters being new or being specific to the sale of CERs or CERs of a specific scope but only requested for testimonials of previous assignments https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 13

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undertaken. On what basis then did the Review Board decide that the Applicant did not furnish references from a client? d. The 1st Respondent then went ahead to distinguish the PPARB 158 of 2020 from the wrong premise that the Applicant did not furnish references from clients, when in fact the Applicant had provided positive references which the Procuring Entity would have confirmed if it wished to, though it opted to shift goal posts and disqualify the Applicant. The 1st Respondent also acted unreasonably by failing to address the Applicant’s pleadings that the reference letters it provided met the requirements of the 3rd Respondent but instead ignored the Applicant’s reference letters and acted as if they did not exist. e. At paragraph 155 of the impugned Decision, the 1st Respondent unreasonably misapplied itself in purporting to refer to the Applicant’s Counsel’s remarks in PPARB 90 of 2025 as its basis to make the impugned finding. The Review Board held: ‘In arriving at the foregoing conclusion we, have also taken into account the submissions made by Counsel for the Interested Party, who recalled that during the hearing of PPARB Application No. 90 of 2025, the Applicant had admitted that, had it known recommendation letters were required under MR 16, it would have provided them. f. The Applicant hereby avers that it was highly irregular, illegal, unprocedural and in breach of the principles of Articles 47 and 227 of the Constitution of Kenya as well as the Fair Administrative Action Act for the 1st Respondent to base its decision on hearsay evidence from the Interested Party’s Counsel’s remarks (as admitted under paragraph 155 reproduced above) and not on the Court record of the proceedings in PPARB 90 of 2025. g. Through its reliance on alleged verbal remarks as opposed to verifiable court records, the 1st Respondent ended up misquoting and misinterpreting the Applicant’s Counsels who had at all times maintained that if the client letters were a mandatory part of the evaluation criteria contained in the tender document as advertised (without the option of either providing reference letters OR cancellation certificates as provided in MR 16), the Applicant would have submitted them in it bid document before tender closing date. 41. It also advances an argument around the abuse of Due Process, Unreasonableness and Irrationality 42. At paragraphs 149 and 150 of the impugned Decision, the 1st Respondent held that with regard to the first two reasons cited for disqualification of the Applicant’s bid by the 2nd Respondent, the Procuring Entity could not consider the alleged non-performance of the Applicant in the past Tender No. KGNSALE-001-2024 for the sale of 4,578,148 CERs valued at USD 32,047,036.00 in its evaluation and resultant disqualification of the Applicant’s because the same was sub-judice and formed the subject of confidential arbitral proceedings. 43. The Applicant argues that in a sudden turn of events, at paragraph 154 of the impugned decision, the 1st Respondent holds that the reasons for disqualification revolve around the Applicant’s past performance history which did not inspire confidence in its ability to deliver under the current procurement. That therefore a reasonable and prudent procuring entity faced with similar facts would have reached a similar conclusion. 44. This reasoning and finding by the 1st Respondent was irrational and an abuse of due process for the following reasons; i. Having already determined that the issue of the Applicant’s non-performance was sub-judice and ought not to have been considered by the Procuring Entity in its due diligence at paragraph https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 14

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149, the 1st Respondent ought to have rendered itself on the disqualification of the Applicant by the 2nd and 3rd Respondent especially having noted that this reason was the core reason for the disqualification of the Applicant as at paragraph 154. ii. Additionally, the 1st Respondent failed to adequately apply itself to the law and the issues raised by the Applicant as pertains to this issue of non-performance; ignoring the Applicant’s submissions at paragraphs 51 and 52 that the same was done in breach of its right to fair hearing having not been given an opportunity to be heard on the alleged non-performance, which issue was only brought up for the first time in the 2nd Regret Letter. iii. The 1st Respondent ignored the Applicant’s submissions on the breach by the 1st and 2nd Respondents of the Fair Administrative Action Act which forbids the making a decision which would go on to affect the affected party without offering them a chance to be heard on the same. iv. That the 1st Respondent breached the rules of natural justice and fair hearing in only considering the 2nd and 3rdRespondent’s allegations on the Applicant’s alleged nonperformance while ignoring and/or failing to recognize the breach of the Applicant’s right to fair hearing, an issue raised for its consideration. v. That the 1st Respondent ignored that the Applicant had a legitimate expectation to be heard on its contrary position that on the alleged non-performance, that it was the Procuring Entity which in fact contributed to the same by its instability and unwarranted termination of the contract; before having its bid disqualified for said non-performance. vi. This especially considering that the Tender Document did not have a requirement for nonperformance, the same having been imposed by the 1st Respondent through Clause 14 of the Bid Data Sheet in the impugned Decision- a fact which is literally admitted by the 1st Respondent at paragraph 147 of the impugned Decision. vii. In an interesting twist, in its very next decision PPARB Application No 98 of 2025 World Standardization Certification & Testing Group (Shenzhen) Co. Ltd vs Accounting Officer Kenya Bureau of Standards & 10 others, the 1st Respondent was presented with the same issues whereby the Applicant therein had been disqualified at due diligence for alleged serious breaches in an existing contract with the Procuring Entity therein and which issues had been raised at due diligence to disqualify it, without affording it an opportunity to be heard on the same. (Annexed hereto and marked “RGM-33” is a copy of the 1stRespondents decision in PPARB Application No. 98 of 2025) viii. In stark contrast with the impugned Decision, the 1stRespondent at paragraph 142 of the Ruling in Application No. 98 of 2025, found that the Applicant was not afforded an opportunity to be heard on the issues raised by the Procuring Entity which issues the Evaluation Committee relied upon in reaching its decision to disqualify the Applicant at due diligence. ix. The 1st Respondent in Decision No. 98 of 2025 at paragraph 143 even relied on Republic v Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & Another [2021] KEHC 8109 (KLR) to hold that: “We understand the above case law to mean that administrative bodies entrusted with public procurement responsibilities, are under a legal duty to observe the principles of natural justice. Before arriving at any adverse decision, it is important to give the affected party a fair opportunity to respond to the said allegations. Failure to accord the Interested Party a hearing amounts to a breach of their right to be heard, a key tenet of fair https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 15

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administrative action under Article 47 of the Constitution and the Fair Administrative Actions Act.” x. It was therefore irrational for the 1st Respondent to fail to appreciate the seriousness of fair hearing in the present impugned Decision then go ahead and enforce the same in its very next decision also dated 27th October 2025. xi. Curiously, the above quoted decision by this Honourable Court bound the 1st Respondent to address these very issues under the doctrine of stare decisis noting that the Court in the Rhombus Construction Case (Supra) noted that public bodies such as the Procuring Entity were bound to uphold the principles of natural justice and that the Review Board, by its mandate and power derived from the Act, was meant to enforce- not ignore any claims of breach of such duty. Such inconsistency is unacceptable as it undermines public confidence in administrative forums such as the 1stRespondent. xii. The 1st Respondent in the circumstances failed to correctly apply and/or interpret the provisions of Section 80 (2) are read together with Section 83 of the Procurement Act, and this led to its consideration of the erroneous finding that the due diligence exercise carried out by the 2nd and 3rdRespondents was in accordance with the law, the provisions of the Tender Document and its directives issued in PPARB Application No. 90 of 2025. 45. It is its case that the impugned decision was materially influenced by an error of law in that the 1stRespondent failed to take into account relevant considerations; that the 1st Respondent abused its discretion and failed to act in discharge of its duty as imposed by law; and further that the impugned decision violated the Applicant’s legitimate expectation. Section 7(2) (d), 7(2)(f), 7(2)(j) and 7(2)(m) of the Fair Administrative Action Act empower this Honourable Court to review the impugned decision under the afore-stated circumstances. 46. On another front, it is its case that the 1stRespondent’s impugned Decision defied logic, was irrational, unreasonable and biased as the same lacked evident and intelligible justifications which are defensible with respect to the facts and law before it; was not governed by law, reason, mental clarity or understanding, or a fair consideration of facts or evidence as demonstrated hereunder: i. At paragraph 143 of the impugned Decision, the 1st Respondent duly notes that Clause 14 of the Bid Data Sheet is the section of the Tender Document that talks about due diligence and that it provides “KenGen may at its own discretion conduct due diligence on the eligible bidders to establish their ability to perform the contract before the award of the contract.” ii. Strangely, the 1st Respondent then went on to ignore the above express provisions of the Tender Document and unfairly imposed its own meanings and interpretations to the same. The 1st Respondent was irrational and unreasonable in doing so as demonstrated below; a. At paragraph 147, of the impugned Decision, without showing any justification in law or fact, the 1stRespondent held that the wording of Clause 14 of the Bid Data Sheet encompassed an assessment of past performance when the same only stated that due diligence could be conducted on eligible bidders to establish their ability to perform the contract. b. The 1st Respondent at paragraph 147, line four of the impugned Decision stated: “Upon perusal, we observe that Clause 14 of the Bid Data Sheet made reference to the Procuring Entity’s obligation ‘…to establish the tenderer’s ability to perform the contract before the award of the contract.’ We interpret this clause as encompassing an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 16

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assessment of past performance, since one of the most practical means of determining a tenderer’s ability to perform a future contract is by examining their previous performance in similar assignments”. c. The 1st Respondent extended its misinterpretation of clause 14 to paragraph 149 where it reiterated that clause 14 of the Bid Data Sheet expressly provided for past performance as a criterion during due diligence when clause 14 contained nothing of that nature. d. Aside from misleading itself and departing from the express provisions of Clause 14 of the Bid Data Sheet, the Review Board’s decision stands in contradiction with its findings and legal reasoning in its prior decision as contained Ruling dated 28th August 2025 in PPARB No. 90 of 2025 (hereinafter referred to as the “previous Ruling”) where it rejected any extraneous interpretations and application of MR 16 by the 3rd Respondents holding that the same was contrary to Section 80 (2) of the Act. It affirmed the sacrosanct nature of tender requirements and the need to stick to the same by procuring entities, bidders and itself as the Review Board. e. At paragraphs 115 and 116 of the previous Ruling, for instance, the 1st Respondent rejected the interpretations of the 2nd and 3rd Respondents purporting to expand the scope of MR 16 by inviting it to read the Tender Document holistically to find that the Tender required bidders to demonstrate experience through dealing with clients and not insider dealing as had been shown by the Applicant. f. The 1st Respondent’s sudden unexplained departure from this sound legal reasoning as seen in the present impugned Decision by now expanding the provisions of Clause 14 of the Bid Data Sheet away from its express wording was irrational, unreasonable, biased, in breach of the Applicant’s legitimate expectation and inimical to public interest which requires the exercise of judicial authority that is consistent, logical and predictable. 47. It argues that further, at paragraph 151 of the impugned Decision, the 1stRespondent noted that with regard to the third reason for disqualification, the issue concerning the 200 CERs transaction as proof of past experience had previously formed the subject of determination in its previous Ruling in PPARB Application No. 90 of 2025. The 1st Respondent noted that in that case, it had found the Applicant to have adequately complied with MR16. 48. However, the 1st Respondent erroneously distinguished its findings in that case from the one before it, misdirecting itself that compliance with MR 16 by the Applicant did not preclude the application of Clause 14 of the Bid Data Sheet, which it held, independently required demonstration of the Applicant’s ability to perform the present tender. 49. These findings by the Review Board were irrational and unreasonable for the following reasons: i. That firstly, it was irrational for the 1st Respondent to make a finding that the Applicant’s disqualification had nothing to do with it failing to meet MR 16 but that instead it was pursuant to failing to satisfy Clause 14 of the Bid Data Sheet when the Procuring Entity’s own Letter of Regret expressly states that the Applicant’s bid was disqualified for failing to meet the requirements under MR 16 at due diligence. ii. That secondly, having found that Clause 14 of the Bid Data Sheet only dealt with due diligence, it was irrational and unreasonable for the 1st Respondent to find that a due diligence https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 17

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requirement in a tender document would create stand-alone requirements that were not meant to be read together with the mandatory and technical requirements of the tender. iii. Disqualification for past similar transactions could not have been held to be a criteria separate from MR 16 as nowhere else in the Tender Document is the requirement mentioned or even contemplated. It reasonably follows that therefore any disqualification purporting to be borne out of the due diligence exercise on this limb had to have arisen from MR 16 as Clause 14 on due diligence was meant to give effect to this prior requirement of past similar transactions only contemplated under MR 16. iv. Lastly, as a consequence of its misguided approach as to Clause 14 of the Bid Data Sheet, at paragraph 152, the 1stRespondent again unreasonably expanded the provisions of Clause 14 of the Bid Data Sheet to create extraneous bid requirements when it held: “given the magnitude of the subject tender and the substantial value involved, the Applicant bore the obligation to demonstrate its capacity to undertake a contract of such scale.” v. From the foregoing, the 1st Respondent was irrational in its isolation of the Clause 14 of the Bid Data Sheet from MR 16 and in doing so, ignoring its findings in its previous Ruling on the same issue wherein it had held that the Tender only merely required bidders to show evidence of a previous transaction and where it had found that the Applicant was fully compliant. vi. The 1st Respondent ignored the express provisions of Clause 14 of the Bid Data Sheet, MR 16 and the Tender Document neither of which contained a requirement or even a provision that bidders needed to demonstrate ability to perform the contract by showing participation in previous CER transactions of a specific capacity. Nowhere too, was it provided that owing to the scope of CERs to be disposed by the Procuring Entity, the Tender would only be eligible to bidders who had disposed of CERs or VERs of a certain capacity. 50. In the further affidavit the Applicant argues that it challenges the legality, rationality and procedural aptitude of the 1stRespondent’s impugned decision and findings vis a vis the actions of the 2nd and 3rd Respondents in conducting the re- evaluation and due diligence process contrary to the express provisions of the Tender Document, the Public Procurement and Asset Disposal Act, 2015 (hereinafter, “the Act”), and the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter, “the Regulations”). 51. The provisions of Clause 14 of the Bid Data Sheet then proceed to state that the same expressly provided for past performance as an assessment criterion when clearly on the face of it, these express words do not feature anywhere in that Clause. 52. The Applicant reiterates that it was irrational and unreasonable for the 1st Respondent to conclude that the Procuring Entity’s Evaluation Committee ought not to have considered the Applicant’s past performance in Tender No. KGN-SALE-001-2024 (hereinafter referred to as “the Previous Tender) and then proceed to affirm the Procuring Entity’s disqualification of the Applicant’s bid for this very reason. 53. This Honourable Court has on numerous occasions emphasized the need for prior supply to bidders of all tender requirements as well as the evaluation criteria to be employed in the scrutiny and comparison of bids. To ensure fairness and competition within the procurement process, procuring entities must ensure strict adherence to such prior supplied requirements and evaluation criteria when assessing the responsiveness of a bidder to such requirements. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 18

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54. The key role of the due diligence process within the procurement process and that, especially noting that a bidder can be disqualified at the due diligence stage, procuring entities must therefore ensure that the same is conducted as per the process under Section 83 of the Act in addition to the procurement principles employed in the other evaluation stages to ensure fairness and competition. 55. Per Section 83 of the Act, read together with Section 80(2) of the Act, a legally sound due diligence can only entail confirmation and verification of the documents already supplied by the lowest/highest evaluated bidder in response to prior stated tender requirements and that the conduct of the due diligence process is as per the due diligence criteria already provided/detailed in the Tender Document (if any). 56. The 1st Respondent misdirected itself by erroneously drawing the distinction that compliance of the Applicant with the requirement MR 16 had no bearing whatsoever on its analysis and resultant findings regarding the conduct of the due diligence exercise by the Procuring Entity when by law, due diligence is the confirmation and verification of documentation supplied in response to the pre-existing tender requirements. 57. Section 83 of the Act provides that due diligence is carried out on the lowest evaluated bidder who has already passed the mandatory and technical evaluation stages, wherein they were already found responsive. It is therefore legally absurd and unjustifiable for the 1stRespondent to find that a due diligence exercise would autonomously entail its own documentary requirements as this would create a situation where a bidder would be found responsive of the tender requirements only to be declared non-responsive at due diligence stage for failing to meet mandatory requirements autonomously required in due diligence and which documentary requirements are independent and distinct from the ones in the mandatory, technical and financial requirements already contained in the tender document. 58. The 1st Respondent not only failed to enforce the due diligence process as contemplated under Section 83 of the Act and as confirmed by case law that is binding on; a. It and that was cited and presented to it but also committed a jurisdictional error in failing to perform its Constitutional and Statutory mandate of ensuring compliance with procurement laws and the principles of sound procurement stipulated in the Constitution and the Act throughout the tendering process. b. Key among these principles is the adherence to the rules of natural justice, which requires that bidders are only disqualified on failure to meet requirements already provided in the Tender Document, and not based on extraneous criteria introduced after the tender closing date, this principle being the spirit behind Section 80 (2) of the Act. 59. The Applicant reiterates that this erroneous distinction drawn by the 1st Respondent between the Applicant’s compliance with MR 16 and its disqualification at due diligence for failing to meet MR 16 is not based on any evidence thereby rendering it illogical, irrational and unreasonable. 60. The 1stRespondent’s Replying Affidavit, the Applicant reiterates that the 1st Respondent acted ultra vires in expanding the requirement under Clause 14 to include new additional client references, a requirement on capacity of previous experience, as well as past performance, especially in view of its interpretation of MR 16 in its previous decision in PPARB 90 of 2025. 61. The 1st Respondent’s decision constituted an error of law as to precedent facts as the 1st Respondent was estopped by the Rule of Law from purportedly finding that the Applicant had not demonstrated prior experience or capacity whereas it had rendered itself to the contrary in its Decision in PPARB 90 of 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 19

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62. The 1st Respondent having already held that the issue of non-performance in the previous Tender was not the subject of consideration by the Evaluation Committee for reason of being subjudice: a. It was irrational and unreasonable for the 1st Respondent, being a quasi-judicial body dispensing a quasi-judicial function, to consider the very issue it had held sub-judice, in deciding on the reasonability of the conclusion that the Applicant’s tender did not inspire confidence in its ability to deliver under the current procurement. b. Additionally, by basing its decision on the alleged non-performance, the 1st Respondent effectively rendered itself on this issue by only taking into consideration the Procuring Entity’s submissions and failing to take into account the relevant facts and submissions by the Applicant regarding alleged non-performance, including the fact that the Applicant was not given an opportunity to be heard on this issue or present documents on the same as it first arose in the 2nd and 3rdRespondents Regret Letter. 63. It was an error of law, irrational and unreasonable for the 1stRespondent to render itself on a contested issue such as this without any offering any intelligible justification either in law or fact, bearing in mind the relevance and significance of this issue to the overall outcome of the Request for Review. 64. It is its case that the Applicant did not have any access to the confidential documents, it was in breach of procedural propriety for the Applicant to be condemned on its alleged nonperformance, without having seen the due diligence report to ascertain the particulars of the alleged non-performance, seeing as the issue would eventually go to inform the failure of its Request for Review. 65. It states that despite the 1st Respondent’s purported consideration of all the pleadings, submissions and confidential documents, the same does not exonerate its decision from irrationality and unreasonableness where the decision is rendered without an appreciation or connection to the purpose for which the decision making body was established and under which it can be then said to rationally operate; nor illegality where it was made in excess of jurisdiction, made without taking into account relevant considerations, and in misapplication of relevant laws as was the case with the 1st Respondent. 66. The Applicant emphasizes that this is judicial review application and not an appeal and should be entertained by this court for the following reasons: a. The Originating Motion filed before this Honourable Court which is based on a procurement process is brought under the Fair Administrative Action Act and 2024 Rules, Articles 10, 47, 50 and 227 of the Constitution and various other provisions of the law as cited in the header seeks a review of the legality, rationality and procedural propriety of the 1stRespondent’s impugned administrative decision and does not invite this Honourable Court to render an appeal of the impugned decision. b. Without prejudice to the foregoing averments, there has been an implicit shift in Judicial Review that came with the 2010 Constitution and the enactment of the Fair Administrative Actions Act that now allows for both procedural and substantive (merit based) Judicial Review grounds which further supports the averments that the Applicant’s case falls clearly within the confines of judicial review which can be entertained by this court. c. The courts, including the Supreme Court have spoken with near-unanimity that the current constitutional and statutory landscape calls for a more robust application of the relief of judicial review to include, in appropriate cases, a merit review of the impugned decision, and this Application is an appropriate case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 20

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d. Where a judicial review application raises constitutional breaches or is made under the Fair Administrative Actions Act, like the present application, as opposed to an application that is strictly based on Order 53 of the Civil Procedure Rules, the courts are not limited to a dry or formalistic examination of the process but can engage in a merit review and that there is nothing doctrinally or jurisprudentially amiss or erroneous in doing so. 67. This court should not limit itself to reviewing the procedural propriety of the 1st Respondent’s decision but must delve into a merit review, which would include ensuring that principles such as fairness, equitability, competitiveness, transparency and cost effectiveness as espoused in Article 227 of the Constitution are adhered and are not narrowly construed, which is what this Judicial Review application is seeking, and is not an appeal. 68. Contrary to Paragraph 7 (b), the due diligence exercise conducted by the 2nd and 3rd Respondents was not to be carried out in accordance with Section 55 (4) of the Act as erroneously alleged by the Interested Party but was instead an abuse of Section 55 (4) of the Act to justify the 2nd and 3rd Respondents request for additional documents not linked to the existing criteria within very unreasonable timelines (about 3 working hours) with an aim of disqualifying the Applicant for failing to meet these additional requirements. 69. Due diligence is carried out strictly as per Section 83 of the Act and Regulation 80 of the Regulations in line with the due diligence criteria in the Tender Document and does not involve the sourcing of new additional client references or other documents that was not part of the criteria. 70. Being a bona fide tendering stage, due diligence has to be carried out as per Section 80 (2) of the Act, using only the due diligence criteria already contained in the Tender Document and the Act (Section 83). 71. It was not a pre-condition under Clause 14 of the Bid Data Sheet or anywhere in the Tender Document that the criteria at due diligence would include fresh sourcing of new fresh documents to prove the eligibility criteria under Section 55 (1) which eligibility criteria was not already contained in the Tender Document, since such an approach would be a breach of Section 80 (2) of the Act. 72. Since the 1st Respondent had in PPARB 90 of 2025 found that the Applicant’s bid was compliant having met the requirements in the second part of MR 16 and all other requirements in the Tender Document, the Applicant’s due diligence ought to have been restricted to verification and confirmation of information and documents in the Applicant’s bid and not due diligence by ambush calling for new evidence in support of new criteria under the guise of complying with section 55 (4) of the Act. 73. Section 55 (4) simply provides that a procuring entity shall require a person to provide evidence or information to establish satisfaction of the eligibility criteria listed under Section 55 (1). 74. Section 55 (1) of the Act was meant to guide accounting officers as to the eligibility criteria to be required of bidders when preparing tender documents while Section 55 (4) is instructive that a procuring entity should request, as part of the tender document, eligibility confirmation documents to fulfill the eligibility criteria under (1). It goes against the principles of fairness and competition and the provisions of section 80 (2) of the Act for a procuring entity to impose new eligibility criteria under Section 55 (1) of the Act, or any other criteria after tender closing. 75. The Applicant states that the 1st Respondent and 2nd Respondent acted irrationally, in error of the law and misapplied the provisions of Section 55 (4) and Section 83 of the Act to justify the illegal imposition of extraneous criteria at the due diligence stage under the guise of supposedly confirming https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 21

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the eligibility of a lowest/highest evaluated bidder in the Applicant, to perform the tender whereas by virtue of being declared the highest evaluated bidder and subjected to due diligence, the responsiveness of the Applicant was already confirmed. 76. It appears that the criteria applied on the Interested Party may have been different from that applied on the Applicant and further wish to state that it is unreasonable and unfair for the 1stRespondent to uphold the due diligence process conducted by the 3rd Respondent if the criteria applied to disqualify the Applicant as communicated in the 3rd Respondent’s email of 17th September 2025 was different from the due diligence criteria that was that applied to the Interested Party. The court must establish if the Inter 77. It argues that the conduct of due diligence has to be done as per the express due diligence criteria contained in the Tender Document pursuant to Section 80 (2) of the Act. It is therefore true that for the due diligence process to adhere to the principles of fairness and competition, only the express provisions of Clause 14 of the Bid Data Sheet (being the sole provision of the Tender Document on due diligence) could be taken into account and which provision made no account for past experience as misleadingly asserted by the Interested Party. 78. It argues that the 1st Respondent was in breach of the Applicant’s legitimate expectation that upon filing the Request for Review Application, it would consider and scrutinize the confidential documents and apply its specialized mandate to ascertain that the due diligence exercise was procedural and in compliance with the Law. 79. The Applicant invites this Honourable Court to review and make a finding on the following additional issues which touch on the lawfulness, reasonableness and procedural fairness as contained in Article 47 of the Constitution, Section 7, 9, 10 and 11 of the Fair Administrative Actions Act and the values of competitiveness and transparency as provided in Article 227 of the Constitution: a. The Applicant is not privy to any of the confidential documents presented by the 2nd and 3rd Respondents before the 1st Respondent, which documents the 1st Respondent must have relied on to make its decision and is hence at a disadvantage due to the information asymmetry between it and the 1st Respondent. b. The 1st Respondent’s Affidavit is heavy on mere denials and does not include any excerpts of documents and annexures to enable the court to arrive at a just decision. The failure by the 1st Respondent to annex documents which it would be allowed to, such as a summary/excerpt of the Evaluation Report which would not violate the provisions of confidentiality under Section 67 of the Act, is a further indication of unfairness and procedural impropriety and even bias against the Applicant and in favour of the other parties. c. Based on the limited information provided by the 1stRespondent and based on the statements by the Interested Party that indicate that there may not have been a uniform due diligence criteria, the Applicant states that the court should review whether the same due diligence criteria applied to the Applicant were also applied to the Interested Party (including timelines for provision of the additional due diligence documents-3 working hours) and what exactly the Interested Party provided to lead to a finding that they were compliant. d. Noting that the Tender Document had no criteria on scope/volume of the evidence on previous transactions of CERs and in view of the information asymmetry and concealment of information by the 1st Respondent, the court with an aim of establishing fairness and transparency in Article 227 of the Constitution, should review the parameters the 1stRespondent applied in upholding the decision of the 2nd and 3rdRespondent that the volume https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 22

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and scale of the Applicant’s transaction are negligible and not acceptable but that the volume and scale of the Interested Party was acceptable. 80. The Applicant invites this Honourable Court to review the decision of the 1st Respondent and make a finding on the following issues: a. Whether the 1st Respondent enforced the legal requirements for a sound due diligence as under Section 83 of the Act and Regulation 80, specifically: that before the commencement of the exercise, a due diligence committee ought to be convened from the Evaluation Committee; and that pursuant to Section 60 of the Act, an objective and quantifiable due diligence criteria was formulated specifying the parameters and scope of the due diligence(if none is already provided in the Tender Document), including the threshold for success/ disqualifying factor for a bidder at due diligence. b. Whether the due diligence criteria formulated by the Due Diligence Committee was applied uniformly and equally between the Applicant and the Interested Party, including on the issue of reference letters noting that the Applicant’s reference letters provided by the Applicant with a notice of only 3 working hours were disregarded as “no letters”. c. In looking at paragraph 6 (f) and (g) of the Interested Party’s Replying Affidavit, and comparing with the documentation and information required from the Applicant in the Email sent on 17th September 2025 by the Procuring Entity, whether the 1stRespondent could have been said to have rationally reviewed the fairness, uniformity and transparency of the due diligence process and criteria used to disqualify the Applicant as was required of it. 81. According to the Applicant, the actions of the Board of justifying the actions of the Evaluation Committee through discretion are unreasonable and irrational contrary to section 7 (2) (k) and 7 (2) (i) of the FAAA, respectively, as it invites an abuse of Article 227 of the Constitution which calls for transparency and creates room for bias, concealment, unfairness, loss of public funds, yet the laws, regulations and guidelines on public procurement are designed to constrain discretion of procuring entities and promote reliance on written rules, published /pre-disclosed evaluation criteria with an aim of promoting fairness, equitability, transparency, competitiveness and cost-effectiveness. 82. The decision by the 1stRespondent to uphold the decision of the 2nd and 3rd Respondent to award the Tender to the Interested Party, a bidder whose price is about Kshs. 400,000,000 (Kenya Shillings Four Hundred Million) lower than that of the Applicant points to irrationality and a serious violation of the principles of cost effectiveness contrary to Section 3 of the Act, Articles 10, 201 and 227 of the Constitution of Kenya. The Applicant's Submissions; 83. In advancing the issue whether the Impugned Decision is tainted with Illegality and Procedural Impropriety reliance is placed in the case of Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex Parte Applicant) [2019] eKLR safeguarding legality is the primary objective of Judicial Review. The Court held: a. “23. Safeguarding legality is the most important purpose for the judicial review of administrative actions. Thus a person seeking judicial review of an administrative decision must be able to persuade the court that there are grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there must always be the premise of “want of legality”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 23

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b. Differently stated, in response to a challenge to the legality of administrative action, courts generally need to consider the compliance with both substantive and procedural legal rules. This is because any administrative decision- making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures.” 84. This Court is invited to scrutinize the compliance by the 1st Respondent with both the substantive and procedural legal rules under which it was bound to evaluate compliance with the same. 85. In Republic V Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] EKLR (“Gibb Africa Case”) where the Court relied on the locus classicus of Council of Civil Service Unions V Minister for the Civil Service [1984] 3 All ER 935 where Lord Diplock established the test for illegality as hereunder: “ ……By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.” (Emphasis ours) 86. The Act and the Regulations place a wide authority upon the Board in carrying out its statutory duties. 87. This authority was recognized by the Court of Appeal in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others (2012) e KLR (“Hyosung Ebara Case”) where the Court expressed itself as thus; “ The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity…S.98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procuring entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal.” 88. It submits that this wide authority is however not absolute. The mandate of the Board is checked by the Act and the Courts as was appreciated In Republic vs. Public Procurement Administrative Review Board & 3 Others Ex Parte Olive Telecommunication PVT Limited [2014] eKLR (“Olive Telecommunication Case”) where the Court held as follows; “ Whereas we appreciate that the Board’s latitude in applications for review is wide, such latitude ought not to be expanded to such an extent that it renders the idea conceived by the PE totally useless. In providing its own definition of what an OEM is the Board in essence altered the bid documents which can only be done as provided by the Act and by the PE.” 89. The Applicant submits that it has demonstrated that the impugned decision is tainted with illegality for reasons that the 1st Respondent: a. Acted in ultra vires of its powers under the Act and the limits of said powers as appreciated in the Olive Telecommunication Case (Supra), by illegally exercising its discretionary powers to find Clause 14 of the Bid Data Sheet (hereinafter referred to as “Clause 14”) implied the post evaluation criteria of past performance and client references. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 24

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90. b. This despite the fact that a plain express reading of this provision does not disclose any such requirements. Additionally, the Tender Document did not contain a post evaluation criterion which would inform such findings. c. Similar to the Olive Telecommunication Case (Supra), the Board failed to appreciate that the power and mandate to impose or alter the tender requirements is placed on the accounting officer of a procuring entity and even then, only before the tender closing date, thereby usurping the powers and responsibilities of the 2nd Respondent. d. Further, by purporting to impose its own extraneous post evaluation criteria from the simple provisions of Clause 14 to include past performance and client references, the Board failed to give effect to the provisions of Section 80 (2) of the Act, and in failing to do so, qualifies its impugned decision for review by this Honourable Court on the grounds of illegality as contemplated in the Gibb Africa Case (Supra). In Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR appreciated the two facets of illegality as hereunder: a. “Illegality is divided into two categories: those that, if proved, mean that the public authority was not empowered to take action or make the decision it did; and those that relate to whether the authority exercised its discretion properly. b. Grounds within the first category are simple ultra vires and errors as to precedent facts; while errors of law on the face of the record, making decisions on the basis of insufficient evidence or errors of material facts, taking into account irrelevant considerations or failing to take into account relevant ones, making decisions for improper purposes, fettering of discretion and failing to fulfil substantive legitimate expectations are grounds within the second category.” 91. This to it amounted to the 1stRespondent’s jurisdictional error which is ultra vires. 92. In Republic v Public Procurement Review Board; Leeds Equipment & systems Limited (Interested Party); ExParte Kenya Veterinary Vaccines Production Institute [2018] EKLR (“the Leeds Equipment Case”) held public bodies have no jurisdiction to commit an error of law; 93. a. “In answering this question, this Court is further guided by the circumstances when a public body shall be deemed to have made an error of law as expounded in Halsbury’s Laws of England, 4th Edition at paragraph 77 as follows: b. “There is a general presumption that a public decision-making body has no jurisdiction or power to commit an error of law; thus where a body errs in law in reaching a decision or making an order, the court may quash that decision or order. The Learned Judge in the Leeds Equipment Case corrected that the previous law which drew a distinction between jurisdictional errors of law on the face of the record and other errors of law is now obsolete as hereunder: a. “The previous law which drew a distinction between errors of law on the face of the record and other errors of law is now obsolete. b. A public body will err in law if it acts in breach of fundamental human rights; misinterprets a statute, or any other legal document, or a rule of common law, takes a decision on the basis of secondary legislation, or any other act or order, which is itself ultra vires; takes legally irrelevant considerations into account, or fails to take relevant considerations into account, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 25

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admits inadmissible evidence, rejects admissible and relevant evidence, or takes a decision on no evidence, misdirects itself as to the burden of proof, fails to follow the proper procedure required by law; fails to fulfil an express or implied duty to give reasons or otherwise abuses its power.” 94. The Applicant submits that the grounds cited alleging that the 1st Respondent committed errors of law in its decision are reviewable by this Honourable Court for reasons that: a. The 1st Respondent failed to appreciate and give effect to precedent facts being its binding Ruling of 28thAugust 2025 in PPARB Application No. 90 of 2025, the 1st Respondent acted in breach of the rule of Law and in breach of the common law principle of stare decisis which bound it to its findings therein. b. In its Ruling dated 28th August 2025, the Board clarified that the use of the words “and/ or” meant that a bidder could meet the requirement under MR 16 by either providing client references (the first part of MR 16) OR evidence of previous transactions (the second part of MR 16) or both. The Applicant’s bid was purely based on previous transactions (evidence in support of the second part of MR 16), which was found by the Board to be a correct/ compliant submission in the previous Ruling. (Emphasis ours) At paragraph 119 of the Board Decision in PPARB 90 of 2025, the 1st Respondent buttressed that the disjunctive nature of the requirement created an ambiguity which could not be visited upon the Applicant. It consequently held that the Procuring Entity’s criteria had applied an extraneous requirement/ criterion that bidders needed to demonstrate experience through dealings with clients (client references), given the disjunctive structure of Mandatory Requirement No. 16. c. In purporting to distinguish its findings in its Ruling dated 28th August 2025 on the responsiveness of the Applicant to MR 16, from the disqualification at due diligence following the re-evaluation of bids, the 1stRespondent in its decision in PPARB 97 of 2025 misapplied itself on a key issue for its consideration being whether the re-evaluation of the bids was done in line with its findings. d. Misinterpreting the provisions of Section 83 of the Act and Regulation 80 of the Regulations by: i. Failing to consider that due diligence involved the strict confirmation and verification of documents already supplied by a bidder and is based on the mandatory and technical requirements already provided in the Tender Document; ii. Failing to consider that the 3rd Respondent unfairly introduced extraneous due diligence criteria that were not borne from the Tender Document and failing to consider decisions of the High Court that are binding on it and previous Board jurisprudence that held that due diligence should be based on criteria provided in the bid documents that prohibited introduction of new criteria at the due diligence stage; and iii. Failing to appreciate that Section 83 of the Act did not allow for the obtaining of confidential references from bidders but from third parties. That the request for additional documents at this stage compromised the integrity of the procurement process by violating the provisions of Section 76 as read together with Section 78 of the Act which forbid the alteration of bids after the tender submission deadline. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 26

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95. Reliance is placed in Republic v Public Procurement Administrative Review Board & 2 others ex-parte Suzan General Trading JLT [2014] KEHC 1800 (KLR) where the Learned Judge rendered himself as thus; “ The Courts must nevertheless be vigilant to see that the said bodies exercise those powers in accordance with the law. The administrative bodies and tribunals or boards must act within their lawful authority and an act, whether it be of a judicial, quasi-judicial or administrative nature, is subject to the review of the courts on certain grounds. The tribunals or boards must act in good faith; extraneous considerations ought not to influence its actions; and it must not misdirect itself in fact or law.” 96. 97. The Applicant submits that the 1st Respondent failed to judicially apply its discretion in the manner in which it dealt with the Request for Review before it, as demonstrated in its Originating Motion, by: a. Ignoring the relevant issues pertaining to the rules of natural justice as raised in the Applicant’s pleadings and submissions inter alia, that the notice period of 3 working hours was too short to reasonably procure third party client references, refusal by the Procuring Entity to address the issues raised in the Applicant’s Letter dated 19th September 2025 and the refusal of the Procuring Entity to disclose the due diligence criteria employed. b. Failing to consider relevant evidence and material before to wit, the unfairness pleaded by the Applicant arising from the Procuring Entity’s decision to disqualify the Applicant for allegedly failing to provide additional references specific to CER’s whereas its own Email of 17th September 2025 was not clear and only requested for testimonials from past experienceswithout specifying CERs, which references the Applicant actually provided despite the very short notice. c. Committing an error of law on the face of the record in purporting to contradict its findings in its Ruling dated 28th August 2025 which already established that the requirement MR 16 was to be read disjunctively, that bidders were either required to provide client references (first part of MR16) OR evidence of previous transactions (the second part of MR 16) and that the Applicant’s bid had been fully compliant with MR 16 having met the requirement in the second part. It was therefore a contradiction for the Board to condone the disqualification of the Applicant for failure to meet requirements that relate to the first part of MR16. d. Failing to consider relevant issues raised by the Applicant, to wit, that the Procuring Entity breached its right to fair hearing by disqualifying it on alleged non-performance in a previous tender without offering it an opportunity to be heard on the same. The Applicant submits that there is no obligation on tribunals such as the 1st Respondent to consider every piece of evidence/ issue raised as was noted in Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] KEHC 9870 (KLR) (hereinafter, “Shenzhen Instrument Case”): “ 61. Courts generally grant tribunals a degree of latitude when it comes to dealing with evidence. Courts have said that the weighing of various pieces of evidence is generally a matter for the tribunal, and ‘merely to ignore “relevant material” does not establish jurisdictional error.[27] There is no obligation on decision makers ‘to refer to every piece of evidence and every contention made by an Applicant in their written reasons’; and, inferences should not be drawn that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 27

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an issue or evidence has been overlooked simply because a piece of evidence was not expressly discussed in the course of the reasons for decision.” 98. 99. However, as further noted in the Shenzhen Instrument Case (supra) the question of whether or not the fact or issue in question is relevant is answered by looking into the instrument conferring the decision-making power to see if the facts or issues raised were a jurisdictional fact. The Court noted: “ 64. The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be the Constitution, a statute or delegated legislation. The courts when exercising this power of construction are enforcing the Rule of Law, by requiring public bodies to act within the ‘‘four corners’’ of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. 65. Determining whether a precondition is or is not a jurisdictional fact is always a question of statutory interpretation. If the statutory construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or nonexistence) of the fact or facts’, the review court is required to give effect to that intention by inquiry into whether the fact or facts exist.” The Applicant submits that the issues raised, and ignored by the Board, can be summarized as: a. The breach of rules of natural justice and fair hearing; and b. The evaluation and subsequent disqualification of its bid on account of unclear / extraneous bid requirements contrary to Articles 47 and 227 of the Constitution. 100. The same pass muster to be considered as relevant considerations ignored by the Board by virtue of Articles 10, 47 and 227 of the Constitution as well as the provisions of the Act and Regulations from which the purpose, powers and mandate of the 1st Respondent Board are derived. An objective interpretation of these instruments show that the 1st Respondent had an obligation to ensure that administrative actions and duties of the 2nd and 3rd Respondents were exercised in a manner that promoted the principles of sound procurement practice and the rules of natural justice. 101. To further qualify their relevance before the 1st Respondent, the Applicant submits that this Honourable Court has previously held that where a tribunal’s attention is drawn to breach of Constitutional provisions and the principles set out in the Act, it must investigate the same. 102. This was held in Lordship Africa Limited v Public Procurement Administrative Review Board & 2 others [2018] KEHC 7978 (KLR) as below: “ …once a court or tribunal’s attention is brought to an issue of an illegality or breach of statute or constitutional provision, in the course of proceedings then in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 28

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the interest of justice the court or tribunal must investigate it because the court’s fundamental role is to uphold the law.” 103. In Republic v Public Procurement Administrative Review Board; County Government of Laikipia & 2 others (Interested Parties) (Judicial Review Application 74 of 2018) [2018] KEHC 2068 (KLR) (Judicial Review) (3 December 2018) (Judgment) held that the taking into account of irrelevant considerations or the ignoring of relevant considerations is a reviewable error. The Learned Judge rendered himself as thus: “ 61 So, as stated in the case R v Secretary of State for Social Services, ex parte Wellcome Foundation Ltd, it is a reviewable error either to take account of irrelevant considerations or to ignore relevant ones, provided that if the relevant matter has been considered or the irrelevant one is ignored, a different decision or rule might (but not necessarily would) have been made…” 104. The Applicant submits that had the 1st Respondent took into account all the issues raised by the Applicant especially as pertains to the; “ 62. As Cooke J pointed out in the case Ashby v. Minister of Immigration [30] considerations may be obligatory i.e. those which the Act expressly or impliedly requires the Tribunal to take into account and permissible considerations i.e. those which can properly be taken into account, but do not have to be. Where the decision-maker fails to consider those obligatory considerations expressed or implied in the Act, the decision has to be invalidated. Whereas, in the case of permissive considerations, the decision-maker is not required to strictly abide to such considerations. Rather, the decision-maker is left at discretion to take the relevant considerations having regard to the particular circumstances of the case by ignoring those irrelevant ones from consideration. The number and scope of the considerations relevant to any particular decision or rule will depend very much on the nature of the decision or rule.” 105. It cannot be prudently said that these considerations complained of herein were permissible considerations as opposed to obligatory considerations seeing as they touch on issues going to the very purpose and mandate for which the 1st Respondent is established, to ensure fair administrative action in public procurement processes. 106. In light of the foregoing, the impugned decision ought to be invalidated for the illegality of failing to take into account relevant considerations in the exercise of its purpose and powers under the Constitution and the Act. 107. The Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others S.C Petition No. 14 Consolidated with 14A, 14B & 14C of 2014 [2014] eKLR held as follows on legitimate expectation: “ In proceedings for judicial review, legitimate expectation applies the principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 29

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108. Further in, Judicial Review Miscellaneous Application No. E039 of 2022; Procurement Administrative Review Board; Ex-Parte Madison General Insurance Kenya Ltd; Accounting Officer KEBS & another the Court held: “ .......The Applicant has ably demonstrated before this court that a relevant consideration was not taken into account resulting in procedural impropriety and unfairness to the Applicant and further, trampling on the Applicant's legitimate expectation that upon presentation of his Request for Review before the Board, all relevant materials and documentation would be considered." 109. 110. 111. The Applicant submits that the impugned decision was also rendered in breach of its legitimate expectation held at the time of filing its Request for Review that the 1st Respondent: a. Would consider all the relevant laws, issues, materials and documentation before it; b. Would render a decision that was consistent with its findings in its Ruling in PPARB No. 90 of 2025 dated 28th August 2025 considering that the same was final and binding; c. Would not depart from its long-standing principles previously affirmed by this Court and in a plethora of its previous Rulings including in the Ruling dated 28thAugust 2025. Specifically, on the sanctity of tender documents and the strict adherence of the same in the evaluation and comparison of bids by procuring entities. On procedural impropriety of the impugned decision, the Court of Appeal in Vickers Security Services Limited vs Public Procurement Administrative Review Board & 3 Others (2025) KECA 671 (KLR) dealt at length with the issue of the right to a fair hearing and at paragraph 112, made a finding that denial of a party to the right to a fair hearing in irrational, unreasonable and unlawful. The Court held as follows: 101. While we agree fully with the reasoning of the Court that an issue of jurisdiction may be raised at any time, including by the Court suo motu, the issue of the implication of the right to a fair hearing guaranteed by Articles 47(1) and 50(1) of the Constitution, which has featured perversely in this appeal, was not addressed in the decision cited by Hatari. The right to a fair trial is so central in our constitutional system, that, by dint of Article 25 of the Constitution it is one of only four rights and fundament freedoms that cannot be abridged under any circumstances. 112. The remedy of judicial review is available to a party aggrieved by a decision that is made in violation of the rules of natural justice or in violation of the right to a fair hearing. In this appeal, Vickers and KRA had demonstrated convincingly that they were denied the right to a fair hearing. In more direct terms, that their constitutional right under Article 50(1) was violated by the Board. However, one defines the terms, to deny a party a fair hearing in the face of Article 50(1) of the Constitution is irrational, unreasonable and above all unlawful. On procedural impropriety, the Applicant submits that the same involves not only adherence to statutory procedure by public bodies but also the adherence to the common law rules and principles of natural justice as was held in the Gibbs Africa Case (Supra) which quoted Lord https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 30

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Diplock in Council for Civil Service Unions v Minister for Civil Service [1985] A.C. 374 at 401 D wherein he described procedural impropriety as: “ …I have described the third head as ‘procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness toward the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice." 112. In the Shenzen Instrument Case (Supra) went further to find that the common law rules of natural justice are inherently expected in every administrative action now being enshrined in Article 47 of the Constitution and the FAAA. That they consist of two pillars, impartiality (the rule against bias) and fair hearing. The Learned Judge held: “ 41, The common law rules of natural justice consist of two pillars: impartiality (the rule against bias, or nemo judex in causa sua – "no one should be a judge in his own cause") and fair hearing (the right to be heard, or audialteram partem – "hear the other side").[8] More recent case law from the UK tends to refer to a duty of public authorities to act fairly rather than to natural justice.” 113. 114. The Applicant submits that the impugned decision satisfies this first pillar by offending the rule against bias in that: a. 1st Respondent only considered the 2nd and 3rdRespondent’s averments on the Applicant’s alleged non-performance while ignoring and/or failing to recognize the breach of the Applicant’s right to fair hearing, as emphatically pleaded by the Applicant. (See paragraphs 26 to 32 of the Applicant’s Statement/Affidavit dated 2ndOctober 2025, pages 284 to 287 of The Applicant’s Annexures and paragraph 8 of the Applicant’s Further Affidavit). b. The 1st Respondent ignored that the Applicant had a procedural legitimate expectation to be heard on its contrary position on the alleged non-performance, that it was the Procuring Entity which in fact contributed to the same by its instability and unwarranted termination of the contract; before having its bid disqualified for said non-performance. The Applicant submits that it has demonstrated that the impugned decision is fatally tainted with illegality on multiple fronts, as summarized below: 1. The 1st Respondent acted ultra vires by importing post-evaluation criteria not provided for in the Tender Document, contrary to the express limits of its statutory mandate under the Act. 2. It further committed errors of law by failing to give effect to binding precedent facts contained in its own Ruling of 28th August 2025, misinterpreting Sections 80 and 83 of the Act, and permitting the Procuring Entity to introduce extraneous documents and requirements after tender submission in violation of Sections 76 and 78 of the Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 31

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3. These errors of law go to the core of the 1st Respondent’s jurisdiction and role within the procurement framework and therefore fall squarely within the jurisdiction of this Court to review and nullify. 115. The 1st Respondent additionally failed to consider relevant and obligatory issues/material, including the Applicant’s rights to fair administrative action, clarity of criteria, and natural justice. It ignored clear statutory and constitutional obligations requiring it to ensure that evaluation of bids strictly in accordance with the Tender Document, thereby undermining Articles 47 and 227 of the Constitution and frustrating the Applicant’s legitimate expectations of a lawful, fair, and consistent review process. For these reasons, the impugned decision cannot stand, having been rendered in breach of the law, the Constitution, and the very purpose for which the 1stRespondent exists. 116. On the issue whether the Impugned Decision is tainted with Irrationality and Unreasonableness the test for rationality, as contained in Section 7 (2) (i) of the FAA was recognized in the Shenzen Instrument Case (Supra) by Honourable J. Mativo wherein the Learned Judge held: 117. a. “Rationality, as a ground for the Review of an administrative action is dealt with in Section 7(2) (a)(i) of Fair Administrative Action which provides that: - “A court or tribunal under subsection (1) may review an administrative action or decision, if— the person who made the decision— was not authorized to do so by the empowering provision." b. The test for rationality was stated as follows: - “The question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. Otherwise, a decision that, viewed objectively, is in fact irrational, might pass muster simply because the person who took it mistakenly and in good faith believed it to be rational. c. Such a conclusion would place form above substance and undermine an important constitutional principle.” In applying this test, the reviewing Court will ask: is there a rational objective basis justifying the connection made by the administrative decisionmaker between the materials made available and the conclusion arrived at.” (Emphasis ours) Lord Diplock in Mahon V New Zealand Ltd affirms the above position by stating: “ The Decision Maker, in the process of finding a fact, must base their judgment upon materials and reasoning that logically supports the existence of facts consistent with the pronouncement in order to stand sensibly and not self- contradictory once it is revealed.” 118. The Applicant submits that the impugned decision does not pass the test for rationality for the reasons as espoused in the Originating Motion and buttressed as hereunder: a. At paragraphs 149 and 150 of the impugned Decision, the 1st Respondent held that with regard to the first two reasons for disqualification cited by the 2nd Respondent, the Procuring Entity could not consider the alleged non-performance of the Applicant in the past Tender No. KGN-SALE001-2024 for the sale of 4,578,148 CERs valued at USD 32,047,036.00 in its evaluation and resultant disqualification of the Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 32

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because the same was sub judice and formed the subject of confidential arbitral proceedings. 119. b. The 1st Respondent then contradicts itself, at paragraph 154, where it holds that the reasons for disqualification revolve around the Applicant’s past performance history which did not inspire confidence in its ability to deliver under the current procurement. That therefore a reasonable and prudent procuring entity faced with similar facts would have reached a similar conclusion. c. As held in the Shenzen Instrument Case (Supra) the above underlined justification by the 1st Respondent of the Procuring Entity’s decision does not render this finding rational simply because the 1st Respondent believed it to be rational. The same has to be viewed objectively against the backdrop of the 1st Respondent’s statutory and constitutional mandate and purpose to handle procurement disputes in a manner that is fair, consistent and predictable. d. In any event, having already determined that the issue of the Applicant’s nonperformance was sub judice and not open to evaluation, it was irrational for the 1st Respondent to not then render itself on the disqualification of the Applicant for this reason. Instead, it affirmed said disqualification. e. The 1st Respondent’s finding at paragraph 149 of the impugned decision that Clause 14 expressly provided for past performance as a criterion during due diligence was also irrational as there was no material and reasoning logically supporting the existence of this fact. Reliance is placed in Judicial Review Miscellaneous Application No. E039 of 2022 Procurement Administrative Review Board Ex-Parte Madison General Insurance Kenya Ltd Accounting Officer KEBS & another cited with approval the case of Council of Civil Service Unions v Minister for the Civil Service (1985) A.C 374 where Lord Diplock stated: “ ...By 'irrationality' I mean what can now be succinctly referred to as "Wednesbury unreasonableness".....it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.......'Irrationality' by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review...." 120. The standard to justify the reasonableness or unreasonableness of an administrative decision was held by Justice Mativo in the Shenzen Instrument Case (Supra) to be as hereunder: “ 113. 121. Review by a court of the reasonableness of decision made by another repository of power is concerned mostly with the existence of justification, transparency and intelligibility within the decisionmaking process but also with weather the decision falls within a range of possible, acceptable outcomes which are defensible with respect to the facts and law.” The Applicant submits that it has successfully demonstrated that the 1st Respondent’s decision would not withstand the Wednesbury test for reasonableness as: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 33

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a. Without any intelligible justification, it directly contradicts and departs from the reasoning and findings in its Ruling in PPARB 90 of 2025 dated 28thAugust 2025 where it rejected any extraneous interpretations and application of MR 16 by the 3rdRespondent holding that the same was contrary to Section 80 (2) of the Act. It unreasonably departed from its previous affirmations on the sacrosanct nature of tender requirements and the need to stick to the same by procuring entities, bidders and itself as the Review Board. (See paragraphs 34 to 36 of the Originating Motion and paragraphs 38 to 41 of the Supporting Affidavit) b. At paragraphs 115 and 116 of the Ruling in PPARB 90 of 2025 dated 28th August 2025, it is seen rejecting the interpretations of the 2nd and 3rd Respondents purporting to expand the scope of MR 16 by inviting it to read the Tender Document holistically to find that the Tender required bidders to demonstrate experience through dealing with clients and not insider dealing as had been shown by the Applicant. c. The sudden unexplained departure from this sound legal reasoning is illogical and satisfies the Wednesbury test for unreasonableness for the simple reason that were the two Rulings to be placed before another reasonable tribunal, this tribunal could not sensibly come to the conclusion that both Rulings were drafted by the 1stRespondent. d. The inconsistency between the findings of the Board on the issue of the right to be heard between the Board decision in PPARB 97 of 2025 and its next decision, PPARB Application No 98 of 2025, between World Standardization Certification & Testing Group (Shenzhen) Co. Ltd v Accounting Officer/Managing Director Kenya Bureau of Standards and Another and Quality Inspection Services Japan China Hamson Inspection and 8 Others (Interested Parties), as outlined in paragraph 36 (vii) and (x) of the Originating Motion. 122. In light of the foregoing, the Applicant submits that it has successfully demonstrated that the impugned decision is fatally tainted with irrationality as contemplated under Section 7(2)(i) of the FAAA. 123. The 1st Respondent’s reasoning is marred by internal contradictions, reliance on non-existent tender criteria, and a failure to demonstrate any logical nexus between the material before it and the conclusions reached. 124. The abrupt and unexplained departure from the 1st Respondent’s own earlier findings in its Ruling of 28th August 2025—particularly on the proper interpretation of MR 16 and the necessity of adhering strictly to tender requirements—renders the decision indefensible, unintelligible, and outside the range of acceptable outcomes. 125. The decision is therefore unreasonable, arbitrary, and constitutionally infirm for violating Article 47 of the Constitution and the standards of fair administrative action. 126. The threshold for the grant of Judicial Review reliefs of Certiorari, Mandamus and Prohibition were explored by the Court in Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] eKLR as: “ Judicial intervention in Judicial Review matters is limited to cases where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 34

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or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter… An administrative decision can only be challenged for illegality, irrationality and procedural impropriety. A petition for a writ of Certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law." 127. The Applicant hereby submits that it has satisfactorily demonstrated that the impugned decision of the 1st Respondent satisfied all the three grounds for judicial review in that it was irrational, unreasonable and illogical; marred with illegalities and irregularities; made in breach of the Applicant’s legitimate expectation and was tainted with procedural impropriety to warrant a grant of the reliefs sought hereunder. 128. In addressing the question whether this is an Appeal Disguised as a Judicial Review Application the Applicant submits that public procurement is a constitutionally regulated function under Article 227 of the Constitution, which imposes mandatory obligations of fairness, equity, transparency, competitiveness and cost-effectiveness. 129. Public procurement cannot be conducted on the basis of narrow or technical interpretations and must strictly conform to constitutional standards of openness, accountability and fairness. 130. These constitutional values are not optional guidelines but binding obligations whose violation justifies the intervention of this Honourable Court. 131. As the Court observed in Republic v Public Procurement Administrative Review Board & 2 Others [2019] KEHC 9688 (KLR), that: “ 62. What must be borne in mind is that public procurement has a constitutional underpinning as clearly stated in Article 227. In addition, the scheme of the act is such that procurement process must strictly conform to the constitutional dictates of transparency, openness, accountability, fairness and generally the rule of law and such rights cannot be narrowly construed. 63. In my view, had the review Board considered the constitutional and the statutory underpinning of procurement processes, it would have in my view arrived at a different conclusion.” 132. The Applicant submits that it is not asking the court to review the rightness or wrongness of the 1st Respondent’s decision to look into the lawfulness, legality, reasonableness of the decision. 133. The Applicant however does not seek such a reevaluation but a review of the 1st Respondent’s decision as contemplated in Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority & 2 Others (Interested Parties) ex parte Roben Aberdare (K) Ltd [2019] KEHC 5570 (KLR), that: “ 125. Nevertheless, whatever the purpose of Judicial Review is deemed to be, some propositions have become clear: orthodox principles of administrative law prescribe that courts engaged in review should not reconsider the merits of the action because they are not the recipients https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 35

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of the discretionary power.[65] Judicial review is not an appellate procedure in which a judge reverses the substantive decision of an administrative body because of the sole ground that the merits are in the Applicant’s favour. Rather, it is a supervisory procedure whereby a judge rules only upon the lawfulness of the decision, or the manner in which one was reached. The question for review, therefore, is whether the decision was ‘lawful or unlawful,’ the question for appeal by contrast is whether the decision was ‘right or wrong.’” 134. The Applicant submits that the Respondents cannot minimize the scope of this Court’s jurisdiction by reducing Judicial Review to a narrow procedural inquiry. 135. In Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019) [2021] KECA 366 (KLR) (7 May 2021) (Judgment), the Court of Appeal held: “ 47. In our own jurisdiction, judicial review has taken the same trajectory in recent years, spurred in large measure by the Constitution of Kenya, 2010. It changed the fundamental underpinnings of judicial review from the common law as codified in the Law Reform Act, to its article 22(3)(f), which recognizes judicial review as one of the appropriate reliefs available. This is bolstered by article 47(1), which decrees the right to fair administrative action, given further effect by the Fair Administrative Action Act which, at section 7(2), sets out an expansive list of circumstances in which a court may review an administrative action or decision. 48. The superior courts of this country have spoken with near-unanimity that the current constitutional and statutory landscape calls for a more robust application of the relief of judicial review to include, in appropriate cases, a merit review of the impugned decision. See, for instance, (…) 49. This court conducted a thorough and exhaustive review of the post-2010 jurisprudence on the evolution of judicial review into the deeper scrutiny, hard look, merit-based standard of review mode in its recent decision in Geoffrey Ajuong Okumu & anor v Engineers Board of Kenya [2020] eKLR . I respectfully echo as representing the current legal position on the subject what we said there was on our way to the conclusion that; "--- we have been able to demonstrate from … the decisions we have enumerated that, by stating that he could not consider evidence presented as defence or analyze the agreements executed by the parties in the dispute because doing so would amount to a merit review, the learned judge erred.” 50. We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 36

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strenuously and artificially avoiding merit. That path only leads to intolerable superficiality." 136. The Supreme Court in Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR) (“Dande Case”) made it clear that where a party alleges violations of constitutional provisions, constitutional values or fundamental rights, Judicial Review is transformed into a broader constitutional oversight mechanism permitting the Court to interrogate not just the procedure but also the substantive fairness, reasonableness and legality of the impugned action. In such circumstances, the Court is required to determine whether the administrative action meets constitutional standards—not merely whether the correct procedure was followed, stating that: “ 87. With utmost respect to the learned Judges of the Court of Appeal, we disagree with the above reasoning and find that the appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, this required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue…” 137. In the present matter, the Applicant’s complaint is not limited to procedural defects but concerns substantive violations of Article 227, the Fair Administrative Action Act and the governing procurement framework. 138. Article 10- National Values and Principles of Governance. The Respondents violated the Constitutional values of rule of law, integrity, transparency and accountability by: 139. i. Failing to adhere and enforce the express tender requirements as contained in the Tender Document; ii. Applying an undisclosed evaluation criterion that has still not been disclosed by either of the Respondents even in their pleadings; iii. Applying evaluation criteria inconsistently; and iv. Failing to provide transparent, lawful or reasoned justification for their decisions. The Respondents violated Article 227 of the Constitution by failing to apply the procurement requirements uniformly and consistently to all bidders. The constitutional guarantee of equality demands equal treatment of persons who are similarly situated, and prohibits administrative bodies from exercising power in a manner that creates arbitrary distinctions between participants in the same process. In the present case, the Respondents: Subjected the Applicant to a stricter and more onerous standard of scrutiny— including adverse reliance on undisclosed allegations of past performance— while exempting other bidders from equivalent due diligence inquiry, despite all bidders being subject to the same tender requirements. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 37

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140. Enforced tender requirements selectively, disqualifying the Applicant for alleged noncompliance while simultaneously overlooking comparable compliance by other bidders. 141. Introduced extraneous considerations uniquely against the Applicant, thereby singling it out for adverse treatment that was not grounded in the Tender Document or procurement law. 142. This differential treatment, unsupported by any lawful or rational justification, constitutes unlawful discrimination and offends the constitutional imperative that all bidders in a public procurement process must enjoy equal protection and equal benefit of the law. 143. Breach of Article 47 of the Constitution- Right to Fair Administrative Action. The evaluation was arbitrary, unreasonable, opaque and procedurally unfair, and the Respondents failed to give lawful, intelligible or adequate reasons for the impugned administrative action. 144. Breach of Article 201- Principles of Public Finance -By conducting a procurement process that was opaque, unaccountable and inconsistent with statutory financial safeguards, the Respondents violated the constitutional obligation to ensure prudent, transparent and accountable use of public resources. 145. Article 227 – Fair, Equitable, Transparent, Competitive and Cost-Effective Procurement. As demonstrated by the Applicants the Respondents’ process was constitutionally defective for being: a. Unfair (unequal treatment of bidders); b. Inequitable (favoring non-compliant bids); c. Non-transparent (use of undisclosed criteria); d. Anti-competitive (considering bids that ought to have been rejected as nonresponsive); and e. Not cost-effective. Despite the Applicant meeting all the preliminary mandatory requirements and offering the best bid price by a BIG MARGIN, the Respondents, for no legally justifiable reason, chose to award the tender to the Interested Party who will deny the Kenyan taxpayer over Kenya Shillings Four Hundred Million (Kshs. 400,000, 000/-) more for this Tender. 146. In these circumstances, and in line with the Dande case, this Honourable Court is properly invited to in addition to examining the procedural aspects as outlined above, to also examine the substance of the Respondents’ conduct to determine whether it meets constitutional and statutory standards. 147. The review sought is therefore consistent with the modern, post-2010 constitutional landscape, in which Judicial Review encompasses both procedural regularity and substantive legality where constitutional norms are implicated. The 1st Respondent’s Case: 148. The 1st Respondent in opposing the application relies on the replying affidavit of Philemon Kiprop, the Board Secretary of the Public Procurement Administrative Review Board, the 1st Respondent herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 38

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149. According to her, the application is misconceived, devoid of merit, and unsustainable in law. She believes that the Applicant stems from a fundamental misapprehension and misinterpretation of the 1st Respondent's Decision by the Applicant. 150. On 6th October 2025, Sintmond Group Limited, the Applicant herein, lodged Request for Review Application No. 97 of 2025 before the 1st Respondent (hereinafter referred to as "Request for Review No. 97 of 2025'), seeking the following orders: 151. a. The Respondents decision awarding Tender Number: KGN-SALE-0052025 Tender for Sale of Certified Emission Reductions (CERs) (RETENDER) to the Interested Party be annulled and set aside; b. The Respondents' Letter of Regret dated 29th September 2025 notifying the Applicant that it had not been successful in Tender Number: KGNSALE-005-2025 Tender for Sale of Certified Emission Reductions (CERs) (RE-TENDER) and notifying the successful bidder as the Interested Party be annulled and set aside; c. A declaration that the Procuring Entity failed to adhere to the Ruling and directions of this Honourable Board issued on 28th August 2025 in its reevaluation of the Tenders; d. A declaration that the Procuring Entity failed to evaluate the Applicant's bid at the due diligence stage in accordance with the provisions of Sections 80 (2) and (3), 83 of the Act and Regulation 80 of the Regulations as read together with the provisions of the Tender Document; e. An order setting aside the due diligence conducted by the Procuring Entity upon the Applicant and the resulting report (if any); f. An order directing the 1st Respondent to award the Tender to the Applicant noting that the Procuring Entity declared it the highest evaluated bidder by virtue of it progressing to the due diligence stage and that it had passed due diligence based on the evaluation criteria in the Tender Document; g. An order awarding costs of this Request for Review to the Applicant owing to the disobedience to the Orders of this Board by the Respondents; and h. The Board to make such further orders as it may deem fit and appropriate in ensuring that the ends of justice are fully met in the circumstances of this Request for Review. It is argued that 7th October 2025, the 1st Respondent, in the exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as "the Act"), made the following final orders with respect to Request for Review No. 97 of 2025: a. The Request for Review dated 2nd October 2025 and filed on 6th October 2025 be and is hereby dismissed; b. The tender validity period in respect of Tender No. KGN-SALE-0050025 Sale of Certified Emissions Reductions (Re-Tender) be and is hereby extended by twenty-one (21) days from the date of this decision; c. The Accounting Officer of Kenya Electricity Generating Company PLC be and is hereby directed to oversee the tender proceedings for Tender No. KGN-SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) to their lawful and logical conclusion; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 39

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d. Each party shall bear its own costs of the proceedings. 152. The 1st Respondent acted strictly within the confines of its statutory mandate. 153. In arriving at its Decision, the 1st Respondent duly considered all parties' pleadings, documents, written submissions, lists and bundles of authorities, as well as the confidential documents submitted pursuant to Section 67(3)(e) of the Act. 154. In light of the foregoing, and guided by previous decisions of the Honourable High Court on similar matters, the 1st Respondent identified the following issues for determination: a. Whether the Board has jurisdiction to hear and determine the instant Request for Review; b. Whether the Respondents complied with the Board's findings and directives issued in PPARB Application No. 90 of 2025; c. Whether the due diligence exercise was conducted in accordance with the law, the requirements of the Tender Document, and the Board's directions in PPARB Application No. 90 of 2025; and d. What appropriate orders should issue in the circumstance. 155. In addressing the first issue regarding its jurisdiction, the 1st Respondent examined the sub-issue of whether the Request for Review had been filed outside the statutory timelines prescribed under Section 167 (1) of the Act. The 1st Respondent observed that the operative event for purposes of computing time was the date on which the Applicant received the Letter of Notification of Award, which was 29 th September 2025. Upon this finding, the 1st Respondent noted that the Request for Review was filed on 6th October 2025, well within the fourteen (14) days stipulated under Section 167 (1) of the Act. Accordingly, the 1st Respondent held that the Request for Review was filed within time and that its jurisdiction had not been ousted. 156. In determining the second issue, namely whether the Respondents had complied with the findings and directives issued in PPARB Application No. 90 of 2025, the 1st Respondent observed that four (4) orders had been made in the said matter. However, only two of those orders, being Order No. 2 and Order No. 3, imposed affirmative obligations upon the 2nd and 3rd Respondents. 157. Order No. 2 in PPARB Application No. 90 of 2025 imposed an obligation upon the 2nd Respondent to reconvene the Evaluation Committee and undertake a re-evaluation of all tenders from the preliminary stage. The 1st Respondent noted that a Re-evaluation Report dated 24th September 2025 had been submitted as part of the confidential documents. On that basis, the 1st Respondent concluded that the 2nd and 3rd Respondents had complied with Order No. 2 of PPARB Application No. 90 of 2025. 158. Order No. 3 in PPARB Application No. 90 of 2025 obligated the 2nd and 3rd Respondents to conclude the tender proceedings within twenty-one (21) days from the date of the decision. The 1st Respondent noted that the 2nd and 3rd Respondents did not complete the process within the prescribed period, having only reached the stage of issuing the Letters of Notification of Award. The 1st Respondent further observed that upon realizing that the period was about to lapse, the 2nd and 3rd Respondents filed a Notice of Motion dated 18th September 2025 before the 1st Respondent seeking an extension of time pursuant to Section 88 of the Act, which was granted on 26th September 2025. Consequently, the 1stRespondent concluded that the 2nd and 3rd Respondents had complied with Order No. 3 of PPARB Application No. 90 of 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 40

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159. In determining the third issue regarding the conduct of due diligence, the 1st Respondent observed that all the reasons advanced for the Applicant's disqualification related to the question of past performance. Consequently, the 1st Respondent began by ascertaining whether past performance formed part of the evaluation criteria under the Tender Document. Upon analyzing Clause 14 of the Bid Data Sheet, which provided that "KenGen may, at its own discretion, conduct due diligence on the eligible bidders to establish their ability to perform the contract before the award of the contract, the 1stRespondent correctly concluded that the clause expressly provided for past performance as an assessment criterion. 160. It is its case that the 1st Respondent observed that the 2nd and 3rdRespondents had advanced four (4) reasons for disqualifying the Applicant at the due diligence stage, as set out in the Applicant's Letter of Notification of Award dated 29th September 2025. The 1stRespondent thereafter proceeded to analyze each of the said grounds individually and in detail. 161. It argues that the first reason cited for the Applicant's disqualification was that the Applicant had previously been awarded Tender No. KGN-SALE-OO 1-2024 for the sale of 4,578, 148 CERs valued at USD 32,047,036.00, and had allegedly failed to honour its contractual obligations. In evaluating the weight of this ground, the 1stRespondent observed that the question of alleged nonperformance was sub judice before the High Court and concurrently formed the subject of ongoing arbitral proceedings. The 1st Respondent therefore correctly concluded that the said matter ought not to have been considered by the 2nd and 3rdRespondents in their due diligence assessment. 162. The 1st Respondent observed that the second reason advanced for the Applicant's disqualification was intrinsically linked to the first, as it merely expanded upon it by noting that the current tender for 6,384,398 CERs included the 4,578, 148 CERs previously terminated for alleged nonperformance by the Applicant. 163. Accordingly, the 1stRespondent found no need for a separate analysis of the second reason and instead adopted and incorporated its reasoning under the first ground in addressing this issue. 164. In addressing the third reason for disqualification, the 1st Respondent observed that the issue concerning the 200 CERs transaction, which had been cited as proof of past experience, had previously been determined in PPARB Application No. 90 of 2025. In that earlier matter, the 1stRespondent held that MRI 6 only required proof of previous transactions, which the Applicant had duly provided, and therefore found the Applicant's disqualification at the Preliminary Evaluation Stage to be unlawful, consequently ordering a re-evaluation. 165. The 1st Respondent, however, correctly noted that compliance with MRI 6 did not preclude the application of Clause 14 of the Bid Data Sheet, which independently required a demonstration of the Applicant's ability and capacity to perform the present tender. 166. The 1st Respondent further observed that, given the magnitude of the subject tender and its substantial financial value, the Applicant bore the obligation to demonstrate its capacity to undertake a contract of such scale. 167. Pursuant to Clause 14 of the Bid Data Sheet, one of the ways of establishing such capacity was by providing evidence of successful performance in previous contracts of comparable value and complexity. 168. However, the Applicant's cited transaction involving 200 CERs was, by all standards, negligible and insufficient to establish its capability to perform the current tender. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 41

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169. The 1st Respondent also noted that the Applicant failed to provide independent evidence of successful performance in previous contracts of comparable value and complexity despite being given an opportunity to do so through the Procuring Entity's email of 17th September 2025. 170. It is its case that, the 1st Respondent found that under the third ground of disqualification, the 2nd and 3rd Respondents were justified in concluding that the Applicant lacked the requisite experience and capacity to handle the present tender. 171. With respect to the fourth ground of disqualification, the 1st Respondent observed that the Applicant failed to provide any new or independent client references evidencing successful performance of comparable contracts, despite having been afforded an opportunity to do so through the Procuring Entity's email of 17th September 2025. The 1st Respondent noted that this omission contravened the requirements of Clause 14 of the Bid Data Sheet, which obligated tenderers to demonstrate capacity and reliability through verifiable past performance. The absence of such references, in the 1st Respondent's view, reasonably led the 2nd and 3rd Respondents to conclude that the Applicant lacked the demonstrated capability to execute a contract of the magnitude contemplated under the present tender. 172. It argues that upon a comprehensive analysis of all the grounds advanced for the Applicant's disqualification, the 1stRespondent correctly concluded that the Applicant had failed to satisfy the requirements of the due diligence stage as set out in the Tender Document. 173. The 1st Respondent found that the Applicant had not demonstrated any prior experience or capacity to manage a contract of similar magnitude to the present tender. 174. According to it when viewed against the backdrop of the earlier terminated tender, the Applicant's performance history did not inspire confidence in its ability to deliver under the current procurement. The 1st Respondent was persuaded that a reasonable and prudent procuring entity, faced with the same set of facts, would have reached a similar conclusion that the Applicant had failed to demonstrate sufficient capability to perform the tender. 175. The 1st Respondent, in its Decision, duly considered all the parties' pleadings, written submissions, and confidential documents. It is evident that the 1st Respondent acted within the confines of the Constitution, the Act, the Public Procurement and Asset Disposal Regulations, 2020, the Fair Administrative Action Act, and the rule of law in rendering its decision in Request for Review No. 97 of 2025. 176. It concludes by arguing that the Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 97 of 2025. The 1st Respondent’s submissions; 177. It submits that Section 173 of the public Procurement and Asset Disposal Act, 2015 provides as follows: Upon completing a review, the Review Board may do any one or more of the following: a. annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety; b. give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 42

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c. substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings; d. order the payment of costs as between parties to the review in accordance with the scale as prescribed; and e. order termination of the procurement process and commencement of a new procurement process. 177. The 1st Respondent in granting the orders herein remained faithful to its powers and mandate and did not divert from the same contrary to what is alleged herein.in deed, the Respondent only acted as expressly authorized under section 173 of the Act. 178. In the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where it was held: “ In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.........Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.” 179. In Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that; “ the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision-making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power." 180. The High Court in Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry Of Nairobi Metropolitan Development & another [2014] eKLR held that “ The purpose judicial review proceedings is to ensure that the individual is given fair treatment by the authority to which he has been subjected and not to ensure that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 43

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authority, after according fair treatment reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” 181. In addressing the issue why the relief for Certiorari should not issue it places reliance in the High Court; in Republic v Kenya Revenue Authority & another Ex-Parte Bear Africa (K) Limited where Majanja J. quoting with approval the decision of Githua J in Republic v Commissioner of Customs Services ex-parte Africa K-Link International Limited Nairobi HC Misc. JR No. 157 of 2012[2012] eKLR as follows; “ It must always be remembered that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself. once it has been established that a statutory body has made its decision within its jurisdiction following all the statutory procedures, unless the said decision is shown to be so unreasonable that it defies logic, the court cannot intervene to quash such a decision or to issue an order prohibiting its implementation since a judicial review court does not function as an appellate court. The court cannot substitute its own decision with that of the Respondent. Besides, the purpose of judicial review is to prevent statutory bodies from injuring the rights of citizens by either abusing their powers in the execution of their statutory duties and function or acting outside of their jurisdiction. Judicial review cannot be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their statutory mandates.” 182. The Court of Appeal in Kenya Pipeline Company Limited V Hyosung Ebara Company Limited & 2 Others (2012) e KLR drew the boundaries for reviewing the decisions of the Review Board as follows: “ The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity…S.98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procuring entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the review board is obviously better equipped that the High Court to handle disputes relating to breach of duty of the procuring entity .it follows that its decision in matters within its jurisdiction should not be lightly interfered with.” 183. Having regard to the wide powers of the Review Board we are satisfied that the High court erred in holding that the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1stRespondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it. 184. In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1stRespondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of natural justice of that the decision was irrational. The Judicial review was not confined to the decision-making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly. 185. The High Court erred in essence in treating the Judicial Review Application as an appeal and in granting review orders on the grounds which were outside the scope of Judicial Review jurisdiction”. It prays that this court adopts similar view as the Court of Appeal in the case above. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 44

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186. There is a clear distinction between an appeal and judicial review proceedings. 187. The Court of Appeal in Municipal Council of Mombasa V Republic & another (2002) eKLR held that in judicial review: “ The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters of did he take into account irrelevant matters? These are the kind of the questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was ore there was not sufficient evidence to support the decision –and that, as we have, is not the province of judicial review”. 188. In Republic Vs Kenya Power & Lighting Company Limited & Another [2013] eKLR the learned Judge quoting a decision of the Court of Appeal stated: “ The Board considering all the arguments of the Applicant and made findings on each of these issues. The Board may have been wrong in its decision but this Court would be usurping the statutory function of the Board were it to substitute its own views for those of the Board” 189. In addressing the prayer for Prohibition, we urge this Honorable court to be persuaded by the findings by the High Court; in Mureithi & 2 Others (For Mbari Ya Murathimi Clan) vs. Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005, Nyamu, J (as he then was held: “ What does an order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not herein lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. That is why it is said Prohibition looks to the future so that if a tribunal were to arrange in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made ... an order of Prohibition would not be efficacious against the decision made. Prohibition cannot quash a decision which has already been made it can only prevent the making of a contemplated decision. There is nothing the Respondents have failed to do, as matter of statute law or legal duty." 190. In Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 eKLR: “ Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of Prohibition would not be efficacious against the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 45

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decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.......an order of Prohibition......cannot quash what has already been done…" 191. In Okiya Omtatah Okoiti v Kenya Revenue Authority & 2 others [2016] eKLR the court relied on the writings of Ferris in his Book on the Law of Extraordinary Legal Remedies and observed: “ It is well settled that a writ of Prohibition may not be used to usurp or perform the functions of an appeal, writ of error or Certiorari, or to correct any mistakes, errors or irregularities in deciding any question of law or fact within its jurisdiction. 192. The Respondent submits that this court should decline the issuance of the orders sought in the circumstances of the present case. Courts while exercising their judicial review jurisdiction have been alive to considerations of public interests in declining the issuance of judicial review even where a party has made out a case of issuance of orders of judicial review. 193. On the issues of costs as pleaded by the Applicant, we submit that section 175(7) of the Public Procurement and Asset Disposal Act forbids award of costs to any party in the event the Board`s decision is quashed by the High Court. The Interested Party's Case; 194. The Interested Party opposes the application through the Replying Affidavit of Andreas Svoor a director of Munja Trading Ltd, a Joint Venture partner of the Interested Party herein. 195. He is aware that the 1st Respondent vide its decision of 27th October 2025 dismissed the Request for Review No. 97 of 2025 filed by the Applicant against the Respondents challenging the decision of the 2nd and 3rd Respondents to award the Interested Party tender KGN-SALE-005-2025 RFX: 5000017132-TENDER FOR SALE OF CERTIFIED EMISSION REDUCTIONS (CERs) (ReTender) (OPEN INTERNATIONAL. 196. Vide its decision of 27 October 2025, the 1st Respondent directed the 2nd and 3rd Respondents to oversee the tender proceedings for Tender No. KGN-SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) to their lawful and logical conclusion. 197. The Applicant herein now challenges this decision on the grounds that the 1st Respondent’s impugned decision: a. Was tainted by illegality and irrationality; b. Was reached at by failing to consider the relevant issues; c. Was unreasonable and irrational; and d. Was arrived at by the 1st Respondent acting ultra vires. e. Was an abuse of due process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 46

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198. It sets out the background of the matter is as follows; On 06 August 2025, the Applicant herein filed a Request for Review Number Application No. 90 of 2025, challenging the 2nd and 3rd Respondents’ decision to disqualify it from proceeding to the financial evaluation stage of the impugned tender. 199. The 1st Respondent vide its decision of 28th August 2025 in Application No. 90 of 2025, directed the Respondents to undertake fresh evaluation of all tenders at the preliminary stage in accordance with the provisions of the Tender Document, the Act, Regulations 2020, and the Constitution taking into considerations of the Board’s findings therein. 200. Order (C)of the said decision of 28th August 2025 directed the 2ndand 3rd Respondents to proceed with and conclude the tender proceedings concerning the Tender No. KGN-SALE-005-2025 for Sale of Certified Emissions Reductions (Retender) including the issuance of an award within 21 days from the date of the Decision. 201. The 1st Respondent recommended that the tenderers ought to have been subjected to due diligence as provided for under section 83 and Regulation 80, and faulted the two-stage evaluation process of Mandatory and Financial Evaluation that was originally carried out by the 2nd and 3rd Respondents. 202. However, the Respondents found it challenging to comply with the above timeline and filed a Notice of Motion before the Board seeking for extension of time to comply with the Board’s Decision of 28 August 2025. 203. That on 26 September 2025, parties appeared before the 1stRespondent for hearing of the 2nd and 3rd Respondents’ motion for extension of time to comply with the Board’s findings in its decision of 28 August 2025. 204. That during the hearing, the Motion was withdrawn by consent of all the parties. The 1st Respondent in its decision of 26thSeptember 2025 also granted the Respondents an extension of 14 days from 18 September 2025, when the initial 21 days were to elapse. This meant that the Respondents had until 02 October 2025 to comply with the Board’s decision of 28 August 2025 for fresh evaluation of the tenders. 205. That the procurement entity conducted fresh evaluation as directed by the 1st Respondent. Both the bids of the Applicant and the Interested Party were evaluated and progressed through the Mandatory Requirements Stage both bids having been responsive. 206. On 08 September 2025, the Interested Party received a letter from the Respondents requesting that it submits a final offer under competitive negotiations pursuant to sections 131, 132 and 133 of the Act as read together with Regulation 100 of the 2020 Regulations. 207. The Interested Party responded and indicated that it was relying on its offer in the bid document. That the 2nd and 3rd Respondents then commenced the due diligence process on the Applicant who was the highest evaluated bidder. 208. The due diligence conducted was in accordance with Section 83 of the Act, and Regulation 80 as read together with section 55(4) of the Act, other Mandatory Requirements and MR14 which provided that “KenGen may at its own discretion conduct due diligence on the eligible bidders to establish their ability to perform the contract before the award of the contract.” 209. That between 15th and 17th September 2025, the 2nd and 3rd Respondents carried physical due diligence on the Applicant. It also requested the Applicant to avail information/various documents among them past experiences- provision of evidence of past professional experience through testimonials from https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 47

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previous assignments undertaken. That this request was in line with the provisions of section 83 and Regulation 80 as read with section 55(4) of the Act. 210. The Applicant, however, did not avail the information requested. Instead, it wrote back saying that the information requested during due diligence were not part of tender requirements. 211. The Applicant also failed to provide information to demonstrate capacity and experience in carbon trading as contained in the Tender Mandatory Requirements and pursuant to section 83 and Regulation 80 as read with section 55(4) of the Act. 212. The Applicant indeed failed to demonstrate experience and capacity to deliver. The 2nd and 3rd Respondents also noted that it was awarded a similar contract to the Applicant in Tender No.KGN-SALE-001-2024 to the Applicant for the Sale of 4,578,148 Certified Emission Reductions (CERs)valued at USD 32,047,036.00, on 7th May 2024, but failed to deliver leading to re-advertisement of the said tender in 2025. 213. Having failed to supply the information required by the 2nd and 3rd Respondents during due diligence, the 2nd and 3rd Respondents considered the Interested Party herein who submitted the next responsive bid as provided for under Regulation 80 (2) (a) and conducted due diligence on it. 214. On 23 September 2025, the 2nd and 3rd Respondents conducted due diligence on the Interested Party physically by visiting their offices. They also requested information including past experience and evidence of carbon credit trading from the Interested Party. 215. The Interested Party responded by submitting two official European Union Registry Transaction Confirmations with EUAs, which are tradable units under the EU Emissions Trading Scheme all done in August and September 2023. Additionally, the Interested Party submitted a commercial invoice to its client, Global DC Oy following sale and purchase agreement dated 10 July 2023. 216. After due diligence and re-evaluation of the tender, the Interested Party was informed that it was the successful bidder having met all the requirements thereof. The Interested Party was issued with a Notice of Intention to Award while the Applicant was issued with a Letter of Regret. 217. The reasons contained in the Letter of Regret to the Applicant are valid and were arrived at after fresh evaluation of the tender which included due diligence. 218. The decision of the 2nd and 3rd Respondents to award the tender to the Interested Party therefore followed tender re-evaluation, due diligence which complied with the constitution, the law, regulations and the tender document. In awarding the tender to the Interested Party, no extraneous considerations were considered during due diligence as alleged by the Applicant. 219. The Applicant herein then filed a Request for Review Number 97 of 2025, challenging the award after fresh evaluation. The 1st Respondent dismissed the Review Number 97 of 2025 and upheld the decision of the 2nd and 3rd Respondents to award the Interested Party the said Tender vide its decision of 27 October 2025. 220. It is this decision of 27 October 2025, that is the subject of this judicial review before the court. 221. On the allegations that the 1st Respondent’s decision dated 27 October 2025 is tainted by illegality and irrationality, the Interested Party responded as follows: a. The 1st Respondent arrived at its decision of 27 October 2025 by finding that the tender process leading to award of the tender to the Interested Party complied with the provisions of the Tender Document, the Act, Regulations 2020, the Constitution taking into considerations its https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 48

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earlier findings therein in Review No. 90 of 2025, which was filed by the Applicant and a decision rendered on 28thAugust 2025. 223. b. That the 1st Respondent therefore did not act ultra vires as alleged at paragraph 32 of the Supporting Affidavit because no extraneous criteria was used in the re-evaluation of the tender. Instead, the 2ndand 3rd Respondents adhered to sections 55(4) and 83 of the Act, Regulation 80, the Constitution and the express provisions of the Tender Document and addenda thereto. c. That the said due diligence was pursuant to section 83 of the Act and Regulation 80 of the 2020 Regulations and was to verify and confirm past our performance from previous clients engagement, bidders’ capacity and accuracy of the information submitted in the bids. Further that it was mandatory in the circumstances before an award would be issued by the Respondents. d. That the due diligence was carried out by the Respondents in discharging their mandate or legal duty to satisfy themselves that the bidders were capable of undertaking the works in the subject Tender. e. That the Interested Party demonstrated that it has experience in carbon trading having provided evidence of previous successful carbon trading with clients as required by MR-16, to win the award after re-evaluation and due diligence. f. That the Applicant, having passed the preliminary stage of evaluation, failed the due diligence under section 83 of the Act, and Regulation 80 (1) and the Respondents were therefore guided by Regulation 80 (2) to award the tender to the Interested Party. It is its case that the Respondents in conducting due diligence did not introduce extraneous considerations as alleged by the Applicant for reasons that the tender document at page 14 (last paragraph) and page 15 provided thus; “ KenGen therefore intends to engage reputable firms and/or institutions with experience in Carbon Credits trading to purchase the 6,384,398 CER’s from its CDM projects which have been implemented and verified in accordance with the United Nations Framework Convention on Climate Change (UNFCCC) guidelines and have demonstrated sustainable development co-benefits as detailed in the table below: a. Affordable & clean energy. b. Improved air quality Employment and access to income generating activities Improved access to education. c. Security enhancement Environmental improvement. d. Clean water for domestic use.” 224. The Interested Party submitted three documents to demonstrate its experience and proof of previous carbon trading with clients namely; Two official EU Registry Transaction Confirmations; and One commercial invoice from Marwil Energy Holding AS. 225. This submission demonstrates that the Interested Party has valid, registry-verified carbon credit transactions; a documented commercial agreement with a named client; and official invoice and transfer of allowances which meet the requirements of MR-16. Further that the above paragraphs 9 and 10 align precisely with the Procurement Entity’s MR16 requirement for verifiable evidence of prior CER or VER transactions. The assertion by the Applicant (paragraph 2(a)(ii) of the Originating https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 49

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Summons and paragraph 32(a)(ii) of the Supporting Affidavit) that there was no requirement for past experience in trading in CERs and VERs is therefore categorically false and intended to mislead the Court. 226. 227. On the allegations of unreasonableness and irrationality, I wish to state as follows. a. The finding of the 1st Respondent met the test in Republic vs- PPARB Exparte Meru University Science and Technology; MsAAKI Consultants Architects & Urban Designers (Interested Party) [2019] Eklr. b. It was a decision which any reasonable decision-maker could have arrived at. The allegation on failure to consider the relevant issues at paragraph 33 of the Supporting Affidavit are unfounded for the reasons that: a. Both the Applicant and the Interested Party passed the Mandatory requirements stage. b. The 2nd and 3rd Respondents conducted due diligence on the Applicant between the 15th and 17th September 2025, having emerged with the highest evaluated bid. c. However, the Applicant failed to supply information to meet specific experience under Mandatory Requirement No. 16 (MR 16) of the tender document as it failed to supply information as requested during the due diligence. d. The information requested was in accordance with Regulation 80 as well as section 55(4) of the Act. 228. The 1st Respondent’s decision of 27 October 2027 was lawful, rational, legal and reasonable, and not tainted by procedural impropriety. 229. The 1st Respondent found that the tender process complied with Mandatory Requirements (MRs), clause 17 (Evaluation and Comparison of Tenders) of the tender document, Articles 10 and 227 of the Constitution as well as Sections 79, 80, 83, and 86(2)) of the PPADA and the Regulation 74 and 80 of the Public Procurement and Asset Disposal Regulations, 2020. 230. The 1st Respondent’s impugned decision was not tainted by illegality and irrationality; was reached by considering the relevant issues; was reasonable and rational; and was arrived at by the 1st Respondent not acting ultra vires. The Interested Parties Submissions; 231. On the issue of merit analysis reliance is placed in The Supreme Court in the case of Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) summarized the two approaches to judicial review in the following manner: “ It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 50

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232. Again, the Supreme Court in SGS Kenya Limited v Energy Regulatory Commission & 2 others (Petition 2 of 2019) [2020] KESC 64 (KLR) (10 January 2020) (Judgment) at paragraph 45 stated as follows: “ We have, however, observed that the appellate court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the Order of mandamus, since the 1st Respondent did not owe any delimited statutory duty to the petitioner.” 233. The Court of Appeal in the SGS Kenya Limited case above endorsed and approved by the Supreme Court in faulting a decision of the High Court where an extensive merit review had been undertaken and had this view: “ Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question. See Republic v. Kenya Revenue Authority ex parte Yaya Towers Limited (2008) Misc. Civil Appl. No. 374 of 2006. In judicial review proceedings, the mere fact that the public body's decision was based on insufficient evidence, or on misapplication of evidence, cannot be a ground granting judicial review remedies. Whether that decision was right or not, the affected party ought to challenge it on appeal.” In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review. See East African Railways Corp. v. Anthony Sefu Far-Es-Salaam (1973) EA 327.” 234. It submits that the court should not carry out a merit review. a. Illegality and Irrationality 235. It submits that the finding at paragraph 145 of the impugned decision that “the Applicant’s bid was disqualified following the due diligence exercise conducted on its bid at the Preliminary Evaluation stage” was proper for the reasons enumerated below. 236. The tender evaluation criteria were set out as Mandatory Requirements Stage, Financial stage. Part of mandatory requirements was the conduct of due diligence on the successful bidder by the 2nd and 3rd Respondents. 237. The Applicant and the Interested Party having passed the mandatory requirements were subjected to the next stage of due diligence as recommended by the Board in its earlier decision involving the same parties. The Applicant failed due diligence and only the Interested Party proceeded to the Financial Evaluation stage. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 51

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238. The due diligence carried out by the 2nd and 3rd Respondents who sought to satisfy a legal requirement or discharge their obligation. In conducting due diligence, the 2nd and 3rdRespondents physically/ practically ascertained whether the contents of the bidder’s documents were true, and whether they had past experience in carbon trading. 239. Having emerged as the highest bidder, on 17th September 2025, the 2nd Respondent carried due diligence and requested the Applicant to avail information/ various documents among them past experiences- provision of evidence of past professional experience through testimonials from previous assignments undertaken. 240. The Applicant, did not avail the information requested. Instead, it wrote back saying that the information requested during due diligence were not part of tender requirements. 241. The 2nd and 3rdRespondents in the circumstances proceeded and conducted due diligence on the Interested Party, who was the 2nd highest evaluated bidder in accordance with Regulation 80(2). 242. The Board in its finding agreed that the Applicant failed due diligence, and the evaluation committee considered the next responsive bid for goods, works or services as recommended by the evaluation committee under Regulation 80. 243. The finding by the 1st Respondent that the 2nd and 3rdRespondents complied with the law in awarding the tender to the Interested Party is therefore in compliance with the provisions below. 244. Section 83 of the Public Procurement and Asset Disposal Act, 2015 provides as follows; 83. Post-qualification (1) An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act. (2) The conduct of due diligence under subsection (1) may include obtaining confidential references from persons with whom the tenderer has had prior engagement. (3) To acknowledge that the report is a true reflection of the proceedings held, each member who was part of the due diligence by the evaluation committee shall— (a) initial each page of the report; and (b) append his or her signature as well as their full name and designation. Regulation 80 provides thus: 80. Post-qualification (1) Pursuant to section 83 of the Act, a procuring entity may, prior to the award of the tender, confirm the qualifications of the tenderer who submitted the bid recommended by the evaluation committee, in order to determine whether the tenderer is qualified to be awarded the contract in accordance with sections 55 and 86 of the Act. (2) If the bidder determined under paragraph (1) is not qualified after due diligence in accordance with the Act, the tender shall be rejected and a similar confirmation of qualifications conducted on the tenderer— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 52

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(a) who submitted the next responsive bid for goods, works or services as recommended by the evaluation committee; or section 55(4) of the PPADA provides that “A State organ or public entity shall require a person to provide evidence or information to establish that the criteria under subsection (1) are satisfied.” 245. The 1st Respondent found that due diligence conducted by the 2ndand 3rd Respondents complied with the provisions of Section 83 of the Act and in this case the Respondents fully complied with the law. 246. In PPARB Application No. 134 of 2019, Trident Insurance Company Ltd v Accounting Officer, County Assembly of Nyamira & Anor) the court held that due diligence in this case includes verifying as past performance from previous clients of such a bidder/person the bidder has had previous engagement. The Applicant failed to do so. 247. The Applicant failed to demonstrate experience and capacity to deliver the contract. Indeed, it was awarded a similar contract in Tender No.KGN-SALE-001-2024 to the Applicant for the Sale of 4,578,148 Certified Emission Reductions (CERs)valued at USD 32,047,036.00, on 7th May 2024, but failed to perform the contract leading to re-advertisement of the said tender in 2025, which is now the subject of review. 248. In Republic v Public Procurement Administrative Review Board & another Ex-parte University of Eldoret [2017] eKLR where the court held as follows: “ 108. …. there must be in every tender document, an implied criteria for due diligence without which there can never be an efficient, transparent and or accountable public procurement process. Tenderers would be quoting the lowest figures and once awarded the tenders, then they would be unable to perform or implement public projects, thereby swindling the tax payer of the much hardearned tax and rendering the whole process a waste of valuable time and financial resources. 109. I would, therefore, without hesitation find that the due diligence complained of is not an additional criteria but is an implied criteria in every tender document, and that the Procuring Entity is under a public duty to carry out due diligence and satisfy itself that the responsive bidders at the technical evaluation stage are capable of implementing the projects before considering the financial aspect for the bidders. 110. In other words, all bidders in all public contracts should expect that they would be evaluated on their capability to implement the projects, notwithstanding their low value bids. 249. We submit that the 1st Respondent rightly found that the Applicant failed to demonstrate capability and past experience in implementing the Tender hence it failed due diligence as envisaged in the law. The Applicant’s is inviting this court to find in its favor that duly diligence ought to be an academic exercise, which would be a violation of sections 55 and 83 of the Act as well as Regulation 80(2). 250. The allegation of illegality and irrationality as pleaded by the Applicant is therefore an invitation to the court to conduct a merit review of the decision through an interrogation of the Request for Review, the responses filed by the parties and their submissions before the 1st Respondent and to come to a different conclusion. This court cannot delve into the question of evaluation of the tender and whether a party deserved an award or not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 53

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251. The 1st Respondent heard all the parties orally and considered their written pleadings and submissions before analyzing the facts and coming to the conclusion that the tender process was compliant with Article 227 of the Constitution. 252. The allegation of considering issues outside the scope of the Request for Review without outlining the issues with clarity and precision cannot be validated. b) Irrationality and unreasonableness 253. Article 227 of the Constitution lays down the minimum requirements for a valid tender process and contracts entered following an award of tender to a successful tender. It requires that the tender process, preceding the conclusion of contracts for the supply of goods and services, must be ‘fair, equitable, transparent competitive and cost-effective.’ This position is replicated in section 3 of the Act. The 2nd and 3rd Respondents in awarding the tender were therefore bound to abide by these provisions. 254. Secondly, the decision to award a tender constitutes administrative action. It follows that Article 47 and the provisions for the Fair Administrative Action Act apply to the process. This is the legislative background against which the present matter must be considered, in light of the 1stRespondent’s decision dated 19 August 2025. 255. Was the 1st Respondent’s decision tainted with illegality, irrationality or procedural impropriety? We answer so in the negative below. 256. The 1st Respondent’s decision to dismiss the Applicant’s Request for Review No. 97 of 2025 was legal, rational, followed the procedure. 257. The test to be applied is whether the decision made by the 1st Respondent is a decision to which no reasonable decision-maker could have arrived at; or a decision which was not reasonably open in the circumstances. 258. In arriving at its decision, the 1st Respondent correctly interpreted; a. The evaluation criteria in the tender document, including the Mandatory Requirements and the due diligence under sections 83 and 55 of the Act, and Regulation 80. b. The provisions of sections 80 and 86 of the Public Procurement and Asset Disposal Act as read together with the tender document vis-à-vis the award of the Interested Party that the evaluation committee and arrived at a decision which was llegal, reasonable and rational. c. The law in finding that the 2nd & 3rd Respondents fully complied with the mandatory provisions of section 87 of the PPADA as read together with Regulation 82. 259. Section 87 of the PPADA as read together with Regulation 82 provides that after evaluating tenders and identifying a successful bidder, the Accounting Officer (the 2nd Respondent herein) must issue written notification to both the successful and unsuccessful tenderers/bidders to inform them of the imminent contract award. This communication must include such pertinent information as the name of the successful tenderer/bidder, the tender price, and the reason why the bid was unsuccessful. Additionally, issuance of the Notification triggers a standstill period (14 days) during which the procuring entity must refrain from concluding or signing the contract with the successful tenderers/ bidders to allow unsuccessful tenderers to inter alia request a debriefing. 260. No material has been placed by the Applicant that any contract was signed between the parties to warrant grant of prayer 4 in the motion, which is merely speculative. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 54

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261. The 1st Respondent’s decision was therefore legal, rational, reasonable, and not tainted with procedural impropriety or bias and ought to be upheld by this Honorable Court for further reasons explained below. 262. Firstly, the 1st Respondent is faulted for acting arbitrarily and irrationally in its interpretation and dismissing the Applicant’s Request for Review No. 97 of 2025. According to the Applicant, “the entire decision was entirely based on the irrational and unreasonable assumption of both facts and law.” The threshold for finding a decision of a public body as being irrational and/or unreasonable is a high one and has been the subject of many court decisions. 263. In Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR the Court held that; “ the test of Wednesbury unreasonableness has been stated to be that the impugned decision must be “objectively so devoid of any plausible justification that no reasonable body of persons could have reached it and that the impugned decision had to be “verging on absurdity” in order for it to be vitiated.” 264. Similarly, in Prasad v Minister for Immigration {1985} 6 FCR 155, the court opined that; “ the decision must be one which no reasonable person could have reached and to prove such a case required “something overwhelming.” It must have been conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt and when “looked at objectively, is so devoid of any plausible justification that no reasonable body of persons could have reached them.” 265. At paragraphs 147-160 of the impugned decision, the 1st Respondent clearly justified the decision to find the mode of evaluation and its application lawful and gave reasons for finding that it was proper and in accordance with the law. 266. The Provisions of Section 80 and 86 of the Procurement Act were juxtaposed with the mandatory provisions of Article 227 of the Constitution and whether these findings were right or wrong, or whether another judicial body seized of the same disputed facts and law would come to a different finding or not, the impugned decision cannot be overturned in these judicial review proceedings. 267. Further, by reaching the conclusion that the mode of evaluation/award was in compliance with mandatory requirements, and that the due diligence was in accordance with regulation 80 and section 83 and 55, and the provisions of Article 227 of the Constitution, the 1st Respondent considered the pleadings and submissions from all the parties before making the determination. There was no violation of due process of law or the breach of laws of natural justice and the 1st Respondent at all times exercised powers granted to it by Statute. 268. It was within the realms of reasonableness and rationality to dismiss the request for Review No. 97 of 2025, the award to the Interested Party having been predictable, and transparent in light of the Constitutional ideals of transparency and cost effectiveness. 269. Was this decision so perverse, in defiance of logic that no reasonable quasi-judicial body would have arrived to it? Has the court been supplied with something overwhelming to interfere? We do not think so. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 55

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270. The findings by the 1st Respondent in these circumstances cannot be faulted as it considered compliance with all the laws in reaching its decision that is being challenged. d. Procedural Impropriety/Failure to Follow Due Process 271. The Court of Appeal in Capital Markets Authority v Ciano & another (Civil Appeal 314 of 2018) [2023] KECA 581 (KLR) (26 May 2023) (Judgment) stated as follows on what constitutes procedural impropriety: “ Procedural impropriety generally encompasses two things: procedural ultra vires, where administrative decisions are challenged because a decision-maker has overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness. Lord Diplock noted that "failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice, is a form of procedural impropriety.” 272. Further, in Republic v Public Procurement Administrative Review Board; Principal Secretary, State Department of Interior, Ministry of Interior and Co-ordination of National Government (Interested Party); Ex Parte Applicant CMC Motors Group Limited [2020] eKLR it was held that; “ the most basic rules of administrative law are first that decision makers may exercise only those powers which are conferred on them by law and, second, that they may exercise those powers only after compliance with such procedural prerequisites as exist. So long as administrators comply with these two rules, their decisions are safe.” 273. The Applicant did not plead with specificity and precision the substantive and procedural legal rules that were not observed or complied with by the 1st Respondent. After this failure, the Applicant is inviting the court to act ultra vires and review the entire record of the proceedings before the 1st Respondent in a fishing expedition. 274. In reaching the conclusion that the mode of evaluation/award was transparent and predictable in compliance with the provisions of Article 227 of the Constitution, the 1st Respondent considered the pleadings and submissions from all the parties before making the determination. There was no violation of due process of law or the breach of laws of natural justice and the 1st Respondent at all times exercised powers granted to it by Statute. 275. Further, there was no violation of legitimate expectation in circumstances where a party was invited by the 1st Respondent to be heard and all the rules of procedure were followed to come to a decision that is clearly legal, rational and reasonable. 276. Finally, the Applicant did not particularize the allegation of bias and the biased decision and cannot be a victim of unprocedural and prejudicial proceedings as alleged. As stated earlier, a party is bound by its pleadings. The 2nd and 3rd Respondent’s Case; 277. The 2nd and 3rd Respondents opposed the application through the replying affidavit of Vincent Mamboleo the Supply Chain Manager of the Third Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 56

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278. It is their case that the 3rd Respondent advertised on its website as well as My Gov Magazine on 27thMay 2025 Tender Number KGN-SALE-005-2025 for sale of Certified Emission Reductions (hereafter “CERs”) The same was an open international tender. 279. The 3rd Respondent undertook the process of evaluation of bids for the tender. Letters of intention to award were issued dated 1st August 2025 while letters of regret were issued dated 1st August 2025. 280. The Applicant upon receiving the letter of regret dated 1st August filed an application for review before the Board being PPARB Application No 90 of 2025 Sintmond Group Ltd Vs Accounting Officer Kenya Electricity Generating Company PLC and Kenya Electricity Generating Company PLC. 281. The Board made its decision in PPARB Application No 90 of 2025 on 28th August 2025 wherein the 3rd Respondent was directed to reconvene its Evaluation Committee and undertake a fresh evaluation of all tenders at the preliminary stage in accordance with the Tender Document, the Public Procurement and Asset Disposal Act, 2015 (hereinafter “the Act”), and the attendant Regulations. 282. In compliance with the Board’s decision of 28th August 2025, the 3rd Respondent’s evaluation committee reconvened and re-evaluated all tenders at the preliminary evaluation stage a fresh. 283. On conclusion of the evaluation due diligence was conducted and the Applicant was issued with the Letter of Regret dated 29th September 2025 while the Interested Party was also issued with a letter of intention to award and declared the successful bidder. 284. The Applicant by a Request for Review dated 2nd October 2025 and filed on 6th October 2025, filed before the Board PPARB Application No 97 of 2020 Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company and Kenya Generating Company PLC. 285. The 1st Respondent rendered its decision on 27thOctober 2025 dismissing the Request for Review and directed the 2nd and 3rd Respondent to proceed with the procurement in question and complete the same within 21 days thereof. 286. The 2nd and 3rd Respondent deny that they have signed a contract with the Interested Party. 287. Prayer 4 of the Originating Motion has no basis, legal and factual and the same be dismissed with costs as no such contract has been signed. 288. There is no illegality or irrationality exercised by the Board in the Decision of 27thOctober 2025 rendered in PPARB Application 97 of 2025. 289. The Board acted intra vires under Section 173 of the Act as read together with Sections 60 and 70(4) of the said Act are not true and the Board by its decision of 27th October 2025 and it did not expand and or amend the provisions of the Tender Document- Clause 14 of the Bid Data Sheet as alleged by the Applicant or in any other way. 290. The Board did not disregard any sections of the Act, the Constitution of Kenya and or the Tender Document in rendering the Decision of 27th October 2025.The Decision of 27th October 2025 did not amend the Tender Document and or introduce any extraneous evaluation criteria. 291. The allegations that the Board failed to consider relevant issues raised before it is without any legal or factual basis and is not true. The Board acted within the law in rendering the Decision of 27th October 2025. 292. There are no illegalities or irregularities in the conduct of the Board and or the said Decision as alleged or at all and neither did the Board act ultra vires. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 57

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293. There is no error in law arising from the Decision of 27th October 2025 rendered by the Board in PPARB Application No 97 of 2025. 294. The Board conducted itself properly and within the law in determining the issues relating to due diligence in rendering its decision of 27thOctober 2025 and considered the law and all pleadings and submissions by the parties. 295. The Decision of the Board both in Application No 90 as well as 97 as filed by the Applicant was based on the pleadings filed by the parties, the submissions filed in writing as well as orally made before the Court. 296. The 2nd and 3rdRespondent’s Advocates that the allegations are not true and the Board properly made its findings on the due diligence report and the conduct of the 2nd and 3rdRespondents.The alleged Legitimate expectation of the Applicant therefore had no legal or factual basis 297. The prudence in conducting the due diligence was a finding resulting from the Decision of the Board in Application No 90 of 2025 and which was subsequently undertaken by the 3rd Respondent. 298. The Applicant was given a fair opportunity to respond to the documents as requested on 17thSeptember 2025 during the site visit while the evaluation committee was conducting the due diligence and even responded by email and letter and provided documents and the Board has not acted irrationally as alleged or at all. 299. The Board did not make an error in law, did not defy logic and neither was it unreasonable and biased in its Decision of 27th October 2025. The 2nd and 3rd Respondents Submissions; 300. They advance the following as the issues for determination: Whether the judicial review application herein is a disguised appeal as it seeks to challenge the merits of the decision of the 1st Respondent 301. The scope and parameters of Judicial Review jurisdiction have been addressed in various decisions, where the Applicant has to show that the impugned decision or act is tainted with illegality, irrationality and procedural impropriety. 302. Reliance is placed in the Ugandan courts in Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 held as follows: “ In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality… Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 58

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adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision” 303. In laying emphasis on what judicial review ought to address, particularly the decision-making process and not the merits of the case thus bringing the distinction between an appeal and judicial review, the courts in Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR determined that: “ Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere. Broadly, in order to succeed in a Judicial Review proceeding, the Applicant will need to show either:- the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or a decision or action that has been taken is 'beyond the powers' (in Latin, 'ultra vires') of the person or body responsible for it.” 304. A quick analysis of Article 47 of the Constitution of Kenya 2010, as read with the Fair Administrative Action Act implies a shift in judicial review to include certain aspects of merit review of an administrative action, with section 7 outlining the conditions that ought to be taken into account when seeking judicial review. 305. However, the main essence of merit review is the power to substitute a decision, a power which judicial review does not confer to any courts, which then brings out the difference between an appeal and judicial review. They place reliance in the case of in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) the Supreme court held as follows: “ 75. In order for the court to get through this extensive examination of section 7 of the FAAA, there must be some measure of merit analysis. That is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasijudicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & another v Lucy Muthoni Njora, Civil Appeal 486 of 2019; [2021] eKLR there is nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against article 259 of the Constitution which requires us to interpret it in a manner that inter alia advances the rule of law, permits the development of the law and contributes to good governance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 59

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76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialized institutions are better placed to do so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, crossexamination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng. Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised." 306. In this case, the Applicant seeks the court to make a full inquiry into the facts and merits of the matter. Specifically, the Applicant urges the court to find that the Board’s decision of 27th October 2025 contravenes its previous order dated 28th August 2025 in Application No 90 of 2025 directing the 2nd and 3rdRespondents to re-evaluate the Applicant’s tender, to which the 2nd and 3rd Respondents adhered to thus culminating to the 2nd Letter of Regret issued to the Applicant. 307. The Applicant further urges this Court to try one of the highly controverted issues during determination by the Board of MR 16 vis a vis Clause 14 of the Bid Data Sheet which was one of the reasons that led to the disqualification of the Applicant due to its failure to issue client references even after being given an opportunity to do so through email dated 17th September 2025. 308. The Applicant further in paragraph 4(f) of the OM urges the court to consider an alleged award of tender to the Interested Party by the 2nd and 3rd Respondents, which allegation has no factual basis as the 2nd Respondent is yet to issue the tender. 309. One thing the Applicant has constantly focused on is how wrong the decision of the Board is, which focus should be directed in appeal instead of focusing on the conduct of the Board throughout the case, which forms the import of a judicial review application. 310. Interestingly, the Applicant fails to mention that despite receiving an email from the 2nd and 3rdRespondents on 17th September 2025 requesting for any new or independent client references, the Applicant explicitly replied by asserting that the documents sought were not part of the tender requirements and then proceeded to provide documents immediately thereafter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 60

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Whether the decision of the Board was marred with tainted with illegality and/or irregularity. 311. The Applicant under this limb claims that the Board failed to appreciate sections 3, 79, 80(2) and 173 of the Public Procurement and Disposal Act (hereinafter referred to as the “PPADA”), as read with the Fair Administrative Action Act (FAAA) and Article 227 of the Constitution. 312. Specifically, section 79 of the PPADA emphasises that a tender shall be considered responsive if it conforms to all the mandatory requirements enlisted in the tender documents and that such a tender shall not be affected by minor deviations, errors or oversights that can be corrected without affecting the substance of the tender. 313. On the other hand, s. 80(2) stipulates that evaluation of tenders shall be done using the procedures and criteria set out in the tender documents. Section 173 goes ahead to empower the Review Board upon completion of a review to annul any proceedings or give directions in relation to the tendering process, with such decisions being made in accordance with the guiding principles set out in s. 3 of the PPADA. 314. From paragraph 28 to paragraph 32, the Applicant enumerates the alleged illegality in the Board’s decision. The issues of past performance and the lack of client references particularly arise with the Applicant vehemently opposing that its past performance ought to have formed part of the due diligence process as stated in Clause 14 of the Bid Data Sheet or MR 16 of the tender documents. 315. In their response to the allegations by the Applicant, we wish to reiterate that the Board in its decision 28thAugust 2025, as empowered by s. 173 of the PPDAA, directed the Board to readmit and reevaluate the Applicant's bid. 316. In following the Board’s directions, the 3rd Respondent consequently conducted due diligence in accordance with Clause 14 of the Bid Data Sheet on the Application 17th September 2025 after which it sent an email to the Applicant seeking additional client references, which email the Applicant responded by categorically stating that what we were requesting for was not part of the requirements in the tender document. 317. Accordingly, the Applicant’s bid became unresponsive as per s. 79 (2) of the PPDA and the Applicant cannot try to fault the Board or the 2nd and 3rd Respondents of its misgivings. 318. In addition, in the 3rd Respondent’s Letter of Regret dated 29th September 2025, it was also stated the Applicant’s past performance with the 3rd Respondent as it had failed to deliver on d Tender No.KGNSALE-001-2024 for the Sale of 4,578,148 Certified Emission Reductions (CERs) by KenGen, valued at USD 32,047,036.00, on 7th May 2024 despite being granted two extensions under the contract, and a stay order by the High court. 319. They submit that to show the Board correctly applied itself to the rule of law, the Board, went ahead and ruled that past performance as stated as the 1st and 2nd reasons for disqualification of the Applicant’s bid was subjudice as the same was the subject of High Court and arbitral proceedings thus could not address itself on the said reasons for disqualification. 320. They reiterate the Board’s decision in holding that capacity to perform a contract as listed as the 3rdreason for disqualification of the Applicant, is a critical requirement in a tender such as the 3rd Respondent’s and due diligence as provided in Clause 14 of the Bid Data Sheet and further echoed in section 83 of the PPDA and Regulation 80 of the Public Procurement and Asset Disposal Regulations, 2020. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 61

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321. 322. The above position was buttressed in Republic v Public Procurement Administrative Review Board & another Ex-parte University of Eldoret [2017] eKLR where the court held as follows: “ 108. In my humble view, there must be in every tender document, an implied criteria for due diligence without which there can never be an efficient, transparent and or accountable public procurement process. Tenderers would be quoting the lowest figures and once awarded the tenders, then they would be unable to perform or implement public projects, thereby swindling the taxpayer of the much hard-earned tax and rendering the whole process a waste of valuable time and financial resources. 109. I would, therefore, without hesitation find that the due diligence complained of is not an additional criteria but is an implied criteria in every tender document, and that the Procuring Entity is under a public duty to carry out due diligence and satisfy itself that the responsive bidders at the technical evaluation stage are capable of implementing the projects before considering the financial aspect for the bidders. 247. In other words, all bidders in all public contracts should expect that they would be evaluated on their capability to implement the projects, notwithstanding their low value bids. [Emphasis added] It is their submission that in light of the above, the Applicant cannot claim illegality or irregularity where the Board rightly applied itself to the law thus this Honourable Court should not interfere with the Board’s decision. Whether the decision of the Board was an abuse of the court process, unreasonable and an error of law. 323. They submit that the decision of a tribunal can only be said to be irrational and unreasonable where there is such callousness in the orders given that no reasonable authority addressing itself to the present facts and law would have made such a decision. 324. To give light to the principle, the court in Republic v Kenya Bureau of Standards & 4 others; Exparte United Millers Limited; Department of Health Services, Nakuru County (Interested Party) [2019] KEHC 11292KLR) in establishing the test for unreasonableness stated thus: “ 63. The tests for legal unreasonableness comprises of any or all of the following:a. specific errors of relevancy or purpose, b. reasoning illogically or irrationally, c. reaching a decision which lacks an evident and intelligible justification such that an inference of unreasonableness can be drawn, even where a particular error in reasoning cannot be identified; d. giving disproportionate or excessive weight — in the sense of more than was reasonably necessary — to some factors and insufficient weight to others. The ex parte Applicant has not demonstrated any of the above tests. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 62

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64. The court’s role remains strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision or if the decision is within the ‘area of decisional freedom’ of the decision-maker, it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently." (Emphasis added) 325. The Applicant under paragraph 36 alleges that the Board directed itself on the issue of its past performance, yet it had declared the same as subjudice. However, the record ought to be set straight that under paragraph 149 and 150 the Board in applying the law held the first two reasons for disqualification as per the Letter of Regret to be sub judice. 326. Nonetheless, the Board in its decision went ahead under paragraph 151 to 153 to analyse the issue of the Applicant’s capacity to implement the subject contract by finding that the failure to provide independent client references and its failure to provide previous contracts of comparable value and complexity despite given the opportunity to present the same as substantive reasons to disqualify the Applicant. 327. Following the Board’s analysis of the 2nd and 3rdRespondents’ reasons for disqualifying the Applicant, the Board held that the disqualification was valid due to the third and fourth reasons for disqualification as stated in the Letter for Regret. The Board did not apply itself to the first and second reasons as claimed by the Applicant. 328. Based on the above disposition, we aver that the Applicant has failed to show how the Board erred in its application of the law, how the decision was irrational nor did give weight to irrelevant facts as presented in the Application for review. In fact, the Board rightly considered all the relevant issues raised by the parties, the interpretation of MR 16 and Clause 14, its decision dated 28th August 2025, the Letter of Regret as drawn by us and the magnitude of the subject contract. Whether the orders of Judicial Review as prayed should be granted. 329. The decision of a specialised tribunal, such as the Board ought to be considered weighty and should not be interfered with lightly and any party that seeks such interference is mandated to prove that the decision is highly unreasonable thus defying logic, marred with illegality or unfair. 330. However, the court in interfering with such a decision can only issue judicial review remedies. This was reiterated in Republic v Kenya Power & Lighting Company Ltd & Another [2013] eKLR, where in placing reliance on Associated Provincial Picture Houses Ltd V Wednesbury Corporation [1948] 1 KB 223 the court held that: “ I think the words of Lord Greene, M.R. at page 229 in the Wednesbury Corporation case (supra) will make good closing remarks in this case. He observed that: “It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 63

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often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another It is not enough for an Applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of the rules of natural justice. The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.” 331. In light of the foregoing, the 2nd and 3rd Respondents assert that the Applicant has not sufficiently demonstrated irregularity, impropriety or illegality by the Board, for the Board’s decision dated 27th October 2025 to be subjected to the orders sought. Analysis and determination: Upon considering the application, the replying affidavits and the rival submissions alongside the authorities, cited by counsel in advancing their respective cases, the court finds following to be the issues for determination. 1. Whether the application has merit. 2. Who shall pay the costs. Whether the application has merit. 332. In the case of Saisi 7 others v Director of Public Prosecutions 2 others (Petition 3940 of 2019 (Consolidated)) 2023 KESC6(KLR) (Civ) (27 January 2023) (Judgment) it was held; “ 63. Judicial Review establishes the court's authority to hold the government as well as the subordinate courts and bodies exercising quasi-judicial authority accountable to the law." 333. Michael Fordham in his book Judicial Review Handbook, 6th edition, Hart Publishing, 2012, defines judicial review as “…. The court’s way of enforcing the rule of law: ensuring that public authorities functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not ‘above the law” 334. Black’s Law Dictionary, 9th Edition, page 924 defines judicial review as; 1. A court’s power to review the actions of other branches of government; esp, the court’s power to invalidate legislative and executive actions as being unconstitutional. 2. The constitutional doctrine providing for this power 3. A court’s review of a lower court’s or an administrative body’s factual or legal findings.” 335. In the suit before me, the court has looked at the pleadings and the law that the parties seek to invoke. The Applicant moved the court through Fair Administrative Action Act and the 2024 Rules, Articles 10, 47, 50 and 227 of the Constitution and various other provisions of the law. Parties have also place https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 64

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reliance on the provisions of the Public Procurement, And Assets Disposal Act and the attendant Regulations in advancing their respective cases. The court is satisfied that the suit fits into the definition of what amounts to a judicial review application. 336. In order to succeed in its case, it is upon the Applicant to prove or demonstrate that its case within the principles as annunciated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where it was held: “ The Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.........Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.” The merit analysis question; 337. In further advancing in the journey of the determination of the suit that is before me, the court has to decide whether it will conduct a merit analysis. 338. In Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that; “ The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power.” 339. According to the Respondents and the Interested Party, the suit is an appeal that is in disguise of a Judicial Review application. 340. On its part, The Applicant emphasized that the application is a judicial review application and not an appeal and should be entertained by this court because The Originating Motion filed before this Honourable Court is based on a procurement process is brought under the Fair Administrative Action Act and 2024 Rules, Articles 10, 47, 50 and 227 of the Constitution and various other provisions of the law as cited in the header seeks a review of the legality, rationality and procedural propriety of the 1stRespondent’s impugned administrative decision and does not invite this Honorable Court to render an appeal of the impugned decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 65

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341. It argued that there has been an implicit shift in Judicial Review that came with the 2010 Constitution and the enactment of the Fair Administrative Actions Act that now allows for both procedural and substantive (merit based) Judicial Review grounds which further supports the averments that the Applicant’s case falls clearly within the confines of judicial review which can be entertained by this court. 342. According to the Applicant, the courts, including the Supreme Court have spoken with nearunanimity that the current constitutional and statutory landscape calls for a more robust application of the relief of judicial review to include, in appropriate cases, a merit review of the impugned decision, and this Application is an appropriate case. 343. Where a judicial review application raises constitutional breaches or is made under the Fair Administrative Actions Act, like the present application, as opposed to an application that is strictly based on Order 53 of the Civil Procedure Rules, the courts are not limited to a dry or formalistic examination of the process but can engage in a merit review and that there is nothing doctrinally or jurisprudentially amiss or erroneous in doing so. 344. The Applicant invites this court to delve into a merit review, which would include ensuring that principles such as fairness, equitability, competitiveness, transparency and cost effectiveness as espoused in Article 227 of the Constitution are adhered and are not narrowly construed, which is what this Judicial Review application is seeking, and is not an appeal. 345. In the case of Edwin Harold Dande 3 Others VS DPP 2 Others the Supreme Court held that; “ (76) We note that judicial review was introduced to Kenya from England in 1956 through Sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court of Kenya. Under this system, the High Court could issue orders of mandamus, Prohibition, and Certiorari. The grounds for the issuance of such orders were borrowed from common law. (77) Prior to the promulgation of the Constitution in 2010 there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan Courts found in Sections 8 and 9 of the Law Reform Act Cap 26, which constituted the substantive basis for judicial review of administrative actions on the one hand, and, Order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand. (78) However, the entrenchment of judicial review under the Constitution of Kenya 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review is no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, Article 47 provides that “every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (79) Furthermore, Section 7 of the Fair Administrative Actions Act provides that: Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to– a. a court in accordance with section 8; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 66

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b. [80] a tribunal in exercise of its jurisdiction conferred in that regard under any written law. Fundamentally also, Article 23 (3) of the Constitution provides that: (3) (81) In any proceedings brought under Article 2, a court may grant appropriate relief, includingb. a declaration of rights; c. an injunction; d. a conservatory order; e. a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; f. an order for compensation; and g. an order of judicial review. The entrenchment of judicial review in the Constitution has led to the emergence of divergent views on the scope of judicial review. The first group postulates that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself while the second group opine that under the current constitutional dispensation, courts could delve into both procedural and merit review in resolving disputes. … (84) More recently in Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) Praxedes Saisi case this Court stated that: b. “It is our considered opinion that the framers of the Constitution when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority.” (85) It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se. (86) Turning back to the instant case, we note that the appellants invoked the judicial review jurisdiction of the High Court alleging that their rights to among others, fair administrative action under Article 47 were violated, and applied for judicial review orders under Article 23 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 67

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the Constitution. In that context, the Court of Appeal in Civil Appeal No. 246 of 2016 stated as follows: “ 28. (87) While this may have been relevant and pertinent information, the question that arises is whether the judicial review Court was the proper forum to determine and direct the information and evidence that was gathered during the investigations, and the manner of its collection by the 1st and 2nd Respondents. In our view, it was not, in light of the standards of SC review which limit a judicial review court’s intervention in merit review. It was emphasized by this Court in Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others, (2016) KLR that while Article 47 of the Constitution as read with the grounds for review provided by section 7 of the Fair Administrative Action Act reveals an implicit shift of judicial review to include aspects of merit review of administrative action, the reviewing court has no mandate to substitute its own decision for that of the administrator.” With utmost respect to the learned Judges of the Court of Appeal, we disagree with the above reasoning and find that the appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, this required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in Order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. Our decision in the Jirongo and Praxedes Saisi cases speaks succinctly to this issue. That is also why, the question below is pertinent to the present appeal. 346. The court has looked at the pleadings that were filed by the Applicant, as guided by the Jirongo and Praxedes Saisi cases(supra) which held that the dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings. 347. The court is of the opinion that the application is not an appeal and the court can delve into the merits where the court addresses the issues of the right to be heard under Article 50(1) of the constitution and the right to fair administrative action and Article 47 of the Constitution. 348. The court also notes that Article 23 of the Constitution makes provision for the grant of redress by way of an order of Judicial Review. 349. The next question that the court addresses is whether the Applicant has made out a case for the grant of judicial review orders. 350. The Applicant has to satisfy the court that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety and that there was a violation of Section 173 of the Public Procurement and Asset Disposal Act, 2015 in so far as the impugned decision is concerned. Section 173 provides as follows: Upon completing a review, the Review Board may do any one or more of the following: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 68

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351. a. annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety; b. give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings; c. substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings; d. order the payment of costs as between parties to the review in accordance with the scale as prescribed; and e. order termination of the procurement process and commencement of a new procurement process. In order to answer whether the impugned ruling was within the ambit of 173 of the Public Procurement and Asset Disposal Act, 2015 the court has looked at Section 83 of the Public Procurement and Asset Disposal Act, 2015 which provides as follows; 83. Post-qualification SUBPARA 1. An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act. SUBPARA 2. The conduct of due diligence under subsection (1) may include obtaining confidential references from persons with whom the tenderer has had prior engagement. SUBPARA 3. To acknowledge that the report is a true reflection of the proceedings held, each member who was part of the due diligence by the evaluation committee shall— a. initial each page of the report; and b. 352. Regulation 80 provides thus: a. 80. Post-qualification 1. 353. append his or her signature as well as their full name and designation. Pursuant to section 83 of the Act, a procuring entity may, prior to the award of the tender, confirm the qualifications of the tenderer who submitted the bid recommended by the evaluation committee, in order to determine whether the tenderer is qualified to be awarded the contract in accordance with sections 55 and 86 of the Act. Since the 1st Respondent found that due diligence conducted by the 2ndand 3rd Respondents complied with the provisions of Section 83 of the Act the court has to satisfy itself that the impugned due diligence process was above board and that the same was not vitiated by any Procedural impropriety. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 69

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354. The Applicant has faulted the 2nd and 3rd Respondents for having denied it an opportunity to go through a legitimate post qualification due diligence process. 355. On 15th September 2025, 3 days before the 18th September 2025 deadline after which the 21 days given by the Review Board the 1st Respondent would have lapsed to comply with its directions, the 3rdRespondent who was the Procuring Entity wrote a letter whereby it declared their intention to carry out due diligence on the Applicant.The letter stated as follows: “ …..In light of the above, you are hereby notified of the Tender Evaluation Committee’s intention to carry out due diligence on your firm for purposes of confirming and verifying your qualifications and determining whether your firm is qualified to be awarded the contract. The proposed date for this exercise is Wednesday 17th September 2025 10:00AM, at your business premises.” 356. On 17th September 2025, a team from the Procuring Entity visited the Applicant’s offices for the site visit as part of the due diligence exercise. 357. At the conclusion of the visit, the 3rd Respondent verbally requested that the Applicant sends them a structured invoicing format which the Applicant later sent. 358. On the same day of the site visit, 17th September 2025 at 2:57 PM, the Procuring Entity sent an Email to the Applicant as reproduced verbatim below: “ Following the due diligence exercise carried out on your firm earlier by our team, you are requested to avail the following information/documents as discussed: 1. Financial Capacity & Audited Accounts- Audited financial statements for at least last 2 years; 2. Financial Credit Lines/Access to Credit- An assurance letter stating their intended process of sale of CER to demonstrate commitment to meeting their financial obligation. 3. ESG Profile and Community Impact Commitment- To provide a brief on how they are undertaking and planning to undertake ESG frameworks. 4. Past Experiences - Provision of evidence of past professional experience through testimonials from previous assignments undertaken. These will facilitate completion of the evaluation exercise within the required timelines hence we request you to avail the documents by tomorrow 18th September 2025 at 9:30 AM.” 359. The Applicant immediately responded to the 3rd Respondent’s requests through its Letter dated 17th September 2025 wherein it: SUBPARA a. Provided documents in proof of past experience by listing various projects executed as well as three (3) Testimonials from Clients with whom it has had previous assignments undertaken as requested, noting that the Email did not request client references specific to CERs or VERs but ‘past experienceprovision of evidence of past professional experience; b. Provided its ESG Strategy Profile and Community Impact Commitment strategy as requested; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 70

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c. Provided a Proposed Payment plan as well as accompanying Proposed Invoices as had been requested in the due diligence exercise; and d. Informed that it had furnished its audited accounts physically to the 3rd Respondent’s office. 360. The Applicant thereafter wrote a letter to the 3rdRespondent dated 19th September 2025 in which it sought clarification on the conduct of the due diligence exercise bearing in mind the fast-approaching deadline and that the ruling and directions of the 1st Respondent did not make it mandatory to conduct the same. 361. The Applicant questioned the legality of the exercise vis a vis Section 83 of the Act and the Tender Documents. 362. In the said Letter, the Applicant raised its reservations that due diligence is meant to be based on the evaluation criteria as per the tender document and that the documents/information requested by the Procuring Entity were not part of the tender and therefore would not constitute information that is subject to the due diligence exercise purporting to be conducted by themselves. 363. The Letter raised a concern that the request for the documents amounted to creation of a fresh evaluation criteria in contravention to the law and resulted in unfairness on the bidder as it is not clear what due diligence criteria the Procuring Entity would be applying in examining the same. 364. The 3rd Respondent responded vide an Email sent on 19thSeptember 2025 whereby it acknowledged receipt of the documents and the Applicant’s Letter. The 3rd Respondent indicated that it would respond to the Applicant’s Letter officially and meanwhile stated that the due diligence documentary requirements including on specific experience must have been clarified during the due diligence exercise. 365. The Email also informed the Applicant that the Procuring Entity would be seeking an extension to the 21-day re-evaluation period from the 1st Respondent, but that nevertheless they expect a conclusion of the exercise soon. 366. The 2nd and 3rdRespondents filed a Notice of Motion Application dated 18thSeptember 2025 with the 1st Respondent, seeking orders for extension of the time by 14 days for them to proceed with and conclude the tender proceedings as per order 3 of the directions of the 1st Respondent. They also requested a grant of leave for due diligence to be conducted during such extended period. 367. Vide a Ruling dated 26th September 2025, the Review Board allowed the 2nd and 3rd Respondents’ Notice of Motion and granted them an extension of 14 days from 18th September 2025 to proceed with and conclude the tender proceedings including issuance of the Letter of Award. 368. Despite being afforded this extension, the 2nd and 3rdRespondents never responded to the clarifications sought on the issues raised in the Applicant’s Letter dated 19th September 2025. 369. Instead, the 2nd Respondent issued the Applicant with a Letter of Regret dated 29th September 2025 informing the Applicant that: “ Based on the due diligence outcome, you failed to meet requirements on the specific/ relevant experience, under MR 16 as you did not demonstrate previous successful participation in Emission Reduction trading/transactions of CER’s or VER’s as listed below: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 71

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i. While reviewing the previous experience and your performance history it was noted that you were awarded Tender No.KGN-SALE-001-2024 for the Sale of 4,578,148 Certified Emission Reductions (CERs) by KenGen, valued at USD 32,047,036.00, on 7th May 2024. Despite being granted two extensions under the contract, and a stay order by the High Court you failed to honour its contractual obligations. ii. The current tender for 6,384,398 CERs incorporates the 4,578,148 CERs previously terminated for non-performance by your firm. This creates a direct and material nexus between your past failure and the subject matter of the present procurement. iii. In your submission you referred to a past transaction involving procurement of 200 CERs at a total USD 180 (KES 23,220) for internal business use. It was established that while this demonstrated limited participation in the carbon market, the volume and scale of the transaction are negligible compared to the magnitude of the current tender involving 6. 38 million CERs. This was therefore determined that such a transaction did not provide credible evidence of capacity to undertake a contract of this scale. iv. In addition, you did not furnish any new or independent client references demonstrating successful performance of comparable contracts. a. The bidder awarded the contract is JV of Munja Trading Limited and Marwil Energy Holding AS at the total price of USD19,637,758.00 (Say United States Dollars Nineteen Million, Six Hundred and Thirty-Seven Thousand, Seven Hundred and Fifty-Eight) for 6,384,398 CER’s.” 370. Being aggrieved by this decision of the 2nd Respondent the Applicant on 6th October 2025 filed Review Application No. 97of 2025 before the 1st Respondent, challenging the decision of the 2nd Respondent as contained in the 2nd Letter of Regret. The 1st Respondent rendered its decision Vide a Ruling dated 27th October 2025 dismissing the Applicant’s Request for Review. 371. By dismissing the application, it is clear that the 1st Respondent acted arbitrarily in that it arrived the decision to issue a regret to the Applicant and the reasons for the regret unilaterally. 372. As at the day of the ruling, the Applicant was still waiting for the clarifications that it had sought. The court arrives at a conclusion that the 1st Respondent's decision to uphold the 2 and 3rd decision to regret the Applicant's bid at the post tender due diligence phase was procedurally unfair. It is clear that it did not consider the Applicant’s case. This can be seen from the reasons that were given for the regret letter. 373. The 2nd and 3rd Respondent arrived at the decision based on past submitted documents to the Applicant's prejudice and without according the Applicant a chance for it to be heard. 374. The 2nd and 3rd Respondent should have responded to the Applicant’s letter and request for information before giving its determination given that they had been given an extension of time by the 1st Respondent. This took away the Applicant’s legitimate expectation that it would be furnished with the response before the closure of the due diligence process. No reason is given why this was not done. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 72

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375. According to De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6thEdn. Sweet & Maxwell page 609: “ A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.” 376. In Republic v Principal Secretary Ministry of Mining Ex-parte Airbus Helicopters Southern Africa (PTY) Ltd [2017] eKLR paragraph 55; It is a requirement that for the doctrine of legitimate expectation to be successfully invoked, the expectation must in the first place be legitimate “in the sense of an expectation which will be protected by law”. This was the view adopted in Royal Media Services Limited & 2 Others vs. Attorney General & 8 Others [2014] eKLR where it was held that: “ ...legitimate expectation, however strong it may be, cannot prevail against express provisions of the Constitution. If a person or a statutory body promises a certain relief or benefit to a claimant or undertakes to do something in favour of a claimant but in a way that offends the Constitution, the claimant cannot purport to rely on the doctrine of legitimate expectation to pursue the claim or the promise.” 377. The Applicant had a legitimate expectation that it would be taken through a process that was legitimate, fair, efficient and effective in line with Article 47 of the of the Constitution by the response 2nd and 3rd Respondents during the post tender due diligence phase. The 1st Respondent failed to uphold the Applicant's legitimate expectation when it dismissed the application. 378. The Supreme Court in the case of Githiga & 5 others v Kiru Tea Factory Company Ltd (Petition 13 of 2019) [2023] KESC 41 (KLR) (16 June 2023) (Judgment) held that under Article 50(2) of the Constitution procedural fairness in the administration of justice involved the fair hearing rule that required a decision maker to inter alia afford a person an opportunity to be heard before making any decision affecting his/her interests. 379. The High Court in Britam General Insurance Limited v Ukwale Agnes Ndungu [2019] Eklr applied the dicta of the Supreme Court of India in Sangram Singh v Electio Tribunal Koteh 1955 AIR 425 that emphasized that the principle of natural justice requires ‘‘that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.’’ 380. Justice Odunga (as he then was) explained in the case of Republic v Commission on Administrative Justice & 2 others Ex parte Michael Kamau Mubea [2017] eKLR the importance of an affected party being accorded an opportunity to be heard as follows: “ 112. In my view, reference to hearing the other side must have been with respect to oral representation since I do not see how a decision affecting a person can be made without affording that person an opportunity to present his case either orally or by in writing in light of the provisions of Article 47 and 50 of the Constitution. However, the law is clear that where a tribunal decides to hear one party then it must hear all the parties.’’ https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 73

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381. Due diligence is a competition tool that is put in place for purposes of ensuring that there is value for money for Kenyans. 382. Due diligence goes hand-in-hand with integrity and transparency. It is accords with the need to uphold, promote and protect the national values and principles of governance under Article 10 of the constitution. 383. It helps reduce and or minimize the risk of losing or wasting public funds. It is by extension, the tool that enables the procuring entities to assure the taxpayer that their money is being put to good, effective and most economical use. 384. The image and the credibility of the tenderer is a very important component when it comes to cross checking the integrity of the tendered before a contract is signed. 385. A due diligence process that does not give to the successful bidder an opportunity to be heard at the pre contract signing stage under Section 83 of Public Procurement and Assets Disposal Act suffers from procedural impropriety. 386. The court finds that the Applicant was shut out and denied the right to be heard at the post award due diligence phase. It’s request for information has never been attended to and because it was not given a genuine opportunity to give the information sought by the 2nd and 3rd Respondent before the letter of regret was issued the regret was based on unacceptable or unknown grounds. The reasons as highlighted in the regret letter confirms the foregoing. The 1st Respondent failed to cure this. On this ground alone, the application can succeed and the court finds that the Applicant has demonstrated that procedural impropriety and a denial of the right to be heard was violated. 387. On another front the court finds that the 1st Respondent illegally failed to appreciate and give effect to its binding Ruling of 28thAugust 2025 in PPARB Application No. 90 of 2025. 388. In its Ruling dated 28th August 2025, the Board clarified that the use of the words “and/or” meant that a bidder could meet the requirement under MR 16 by either providing client references the first part of MR 16 evidence of previous transactions the second part of MR 16 or both. The Applicant’s bid was based on previous transactions evidence in support of the second part of MR 16, which was found by the Board to be a correct/compliant submission in the previous Ruling. 389. At paragraph 119 of the Board Decision in PPARB 90 of 2025, the 1st Respondent buttressed that the disjunctive nature of the requirement created an ambiguity which could not be visited upon the Applicant. It consequently held that the Procuring Entity’s criteria had applied an extraneous requirement/criterion that bidders needed to demonstrate experience through dealings with client references, given the disjunctive structure of Mandatory Requirement No. 16. 390. In purporting to distinguish its findings in its Ruling dated 28th August 2025 on the responsiveness of the Applicant to MR 16, from the disqualification at due diligence following the re-evaluation of bids, the 1stRespondent in its decision in PPARB 97 of 2025 misapplied itself on a key issue for its consideration being whether the re-evaluation of the bids was done in line with its findings. 391. The court finds that this generated an illegality on the part of the 1st Respondent and it is this court’s finding that the Applicant has made out a case for the grant if the order of Certiorari which is hereby issued. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 74

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392. The Applicant's also sought an order of Prohibition. In Okiya Omtatah Okoiti v Kenya Revenue Authority & 2 others [2016] eKLR the court relied on the writings of Ferris in his Book on the Law of Extraordinary Legal Remedies and observed: “ It is well settled that a writ of Prohibition may not be used to usurp or perform the functions of an appeal, writ of error or Certiorari, or to correct any mistakes, errors or irregularities in deciding any question of law or fact within its jurisdiction.” 393. Having been successful in convincing the court that the impugned ruling should be quashed, then the order of Prohibition automatically falls into place since parties cannot enforce that which has been declared as illegal and I so hold. 394. The Applicant also sought for a prayer that an order of Certiorari, to remove into the High Court and quash and/or set aside any Contract in respect of Tender No. KGN- SALE. The Applicant did not advance any evidence to show that there is a contract as a result of which no order can issue as sought. Costs: 395. Section 175(7) of the Public Procurement and Asset Disposal Act forbids award of costs to any party in the event the Board`s decision is quashed by the High Court. 396. It is this court’s finding that it shall not issue any costs. Determination; 397. The application has merit. Orders: 1. An order of Certiorari, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board (the 1st Respondent) dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) is hereby issued. 2. An order of Prohibition, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1stRespondent dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) is hereby issued. 3. The prayer that an order of Certiorari, to remove into the High Court and quash and/or set aside any Contract in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) illegally signed between the 2nd and 3rd Respondent and the Interested Party during the 14 days standstill period following the decision of the 1st Respondent dated 27th October 2025 is declined. 4. The prayer that pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue AN INTERIM ORDER FOR STAY, to stay the Execution https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 75

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and/or Implementation of the Decision of the 1st Respondent dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) is spent. 5. The application is hereby sent back to the 1st Respondent for re hearing which in an event must be done within 14 days of today's date. 6. No order as to cost shall be issued. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF DECEMBER, 2025. ………………………………………….. J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19323/eng@2025-12-29 76

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