Republic v The Public Procurement Administrative Review Board

intended respondent in Public Procurement Administrative Review Board Request for Review No. 121 of 2025, The Gardens and Weddings Centre Limited Vs. The Accounting Officer, County Government of Nakuru Department of Health Services and the County Government of Nakuru, Department of Health Services. 2) Leave once granted, do operate as stay of the intended respondents’ decision and further Procurement Proceedings by the procuring entity with respect to Tender No. CGN/MOH/ONT/021/2025–2026Provision of Cleaning and Gardening Services pending the filing, hearing and determination of the substantive motion. 3) The costs of this application be met by the Respondent. 2. The Application is premised on the grounds on the face of the chamber Summons, the statement of facts, and the Verifying Affidavit sworn on even date by Daniel Gathogo Mugo, the director of the ex parte applicant. In it, it is stated that the procuring Entity advertised an Open Tender for the provision of comprehensive cleaning and gardening services (Tender No: CGN/MOH/ONT/021/2025-2026). 3. The ex parte applicant submitted its bid, in both hard and soft copies, as required in the invitation to tender, and the procuring entity received and opened the ex parte applicant’s bid. 4. The Applicant stated that it is the immediate previous contractor for the subject services at the Procuring Entity and at clause MR-17 of the Mandatory Evaluation Criteria of the subject tender provided as follows:“Must provide recommendation letter from the Health Services by the Accounting Officer signed if the contractor/supplier has previously worked with the Department. Contractors whose projects were terminated due to non-performance or were in breach of the contract terms shall not be considered. Debarred contractors shall also not be considered.” RULING HIGH COURTNAKURU JR. NO. E002 OF 2026 Page 2

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5. It is averred that the exparte applicant had never had its contract terminated due to poor performance or being in breach of any contractual term, nor have they been debarred from participating in public procurement under the Public Procurement and Assets Disposal Act. 6. That in an effort to fully comply with the tender requirement (MR-17 Mandatory Evaluation Criteria), the exparte applicant had variously visited the procuring entity’s offices and also written to the procuring entity to obtain the Recommendation Letter, which the procuring entity’s officers, without any explanation, failed to supply to the applicant. 7. At the close of tender submission, the Procuring Entity had not supplied the exparte applicant with the recommendation letter, and the exparte applicant submitted its bid and filed the Request for Review Number 121 of 2025 before the intended respondent on the following grounds, amongst others:a) That the procuring entity had failed to provide the recommendation letter to the exparte applicant, even though there was a legitimate expectation that the same was provided. b) That the Clause MR-17 was, notwithstanding, unfair as against the applicant since it was only being applied as against the ex parte applicant and not all the other bidders. 8. The intended respondent rendered its decision on 19th January 2026, which is the subject of these proceedings in which the ex parte applicant is seeking to quash. 9. The Applicant states that in arriving at the said decision, the intended Respondent made an error of law and fact by failing to take into consideration that the ex parte applicant was unfairly denied the Recommendation letter by the Procuring entity and thereby rendered a decision which was unfair, biased and irrational in the circumstances. RULING HIGH COURTNAKURU JR. NO. E002 OF 2026 Page 3

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10. Further, the Respondent took into account issues which it had not taken into account, especially on the question of whether the ex parte applicant properly requested the recommendation letter and hence arrived at a wrong decision. Analysis and Determination 11.When this matter was filed under a certificate of urgency, this court on 3 rd February, 2026, granted the ex parte applicant leave to file the substantive motion, leaving the stay as the only issue pending for determination. 12.Order 53 Rule 1(1) and(2) of the Civil Procedure Rules under which the application is filed provides as follows:“No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. (2)An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by (a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and(b)affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.” 13.The Court notes that the Ex Parte Applicant has complied with the procedural mandates of Order 53 of the Civil Procedure Rules. The application is supported by a Statement and a Verifying Affidavit deposed by Daniel Gathogo Mugo, which sets out the relief sought and the grounds thereof. The Applicant has further averred that no other causes are pending nor previous proceedings between the parties over this subject matter, thus satisfying the statutory threshold for the commencement of Judicial Review proceedings. 14.In considering the prayer for a stay of the Public Procurement Administrative Review Board’s (PPARB) decision, the Applicant must be reminded that a RULING HIGH COURTNAKURU JR. NO. E002 OF 2026 Page 4

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judicial court is primarily concerned with the process by which a decision is arrived at, rather than the merits of the decision itself. 15.The factual basis of this case is that the County Government of Nakuru (hereinafter referred to as “the Procuring Entity”) invited eligible tenderers to submit bids for Tender No. CGN/MOH/ONT/021/2025-2026 Provision of Comprehensive Cleaning and Gardening Services (hereinafter referred to as “the subject tender”). The tender was initially scheduled to close and be opened on 22nd December 2025. However, the same was extended till 29 th December, 2025, vide the letter of 19th December, 2025. 16. Eight (8) entities, including the ex parte Applicant that had submitted their tenders, were listed as per the decision of the Public Procurement Review Board. However, before a decision was made on who had emerged as the winner of the tender, the ex parte Applicant filed a review before the Public Procurement Administration Review Board, under Application No. 121 of 2025, seeking the following Orders:a) The Honourable Board be pleased to find that Clause MR 17 (Mandatory Evaluation Criteria) is unfair, unlawful, unreasonable and discriminatory as against the applicant and the same be expunged as part of the Mandatory Evaluation Criteria. b) The Applicant’s bid be subjected to further evaluation on the basis of the same and/or identical criteria similar to all other bids. c) Costs of this application be borne by the Respondents; and d. Any other orders that the Honourable Board may deem just and fit. 17.Clause MR 17 of the bid document provides that the bidder that had previously served the county has to:“Must provide recommendation letter from the Health services by the Accounting Officer signed if the contractor/supplier has previously worked with the Department. Contractors whose projects were terminated due to non-performance or were in breach of the contract RULING HIGH COURTNAKURU JR. NO. E002 OF 2026 Page 5

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terms shall not be considered. Debarred contractors shall also not be considered.” 18.It is on this clause that the ex parte applicant in the Public Procurement Administration Review Board, argued that the clause was discriminatory against the former supplier. The Review Board on the subject issue held that ;“Having considered the parties’ submissions and examined all the evidence on record, the Board finds that the issue of discrimination with respect to MR-17 cannot be determined at this stage, as the Applicant bound itself to the provisions of the tender document by submitting its bid. 63. Further, the Board finds that the evaluation process is yet to be conducted, and any attempt to determine the matter at this stage would amount to pre-empting, as the alleged breach has yet to crystallise. 64. Consequently, the instant Request for Review, filed on 29th December 2025, relating to Tender No. CGN/MOH/ONT/021/2025-2026 Provision of 31 Comprehensive Cleaning and Gardening Services, is hereby disallowed, as specified in the Final Orders section below...” 19.The Review Board, therefore, dismissed the ex parte Applicant Application dated 29th December 2025 and further directed the Accounting Officer of the County Government of Nakuru, Department of Health Services to oversee the tender proceedings for Tender No. CGN/MOH/ONT/021/2025-2026 Provision of Comprehensive Cleaning and Gardening Services to their logical and lawful conclusion. 20.The Applicant is thus seeking to stay the intended Respondents’ decision and further Procurement Proceedings by the procuring entity with respect to Tender No. CGN/MOH/ONT/021/2025–2026- Provision of Cleaning and Gardening Services pending the filing, hearing and determination of the substantive motion. RULING HIGH COURTNAKURU JR. NO. E002 OF 2026 Page 6

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21.While this Court acknowledges the issues raised regarding the fairness of Mandatory Clause MR-17, the application for a stay must be weighed against the significant fact that the procurement process has not yet been concluded or an award made. As the Board correctly noted, the evaluation of bids is still pending, meaning no crystallised breach has occurred that would render the substantive Judicial Review nugatory. 22.Furthermore, since the subject matter involves essential cleaning and gardening services for public health facilities, granting a stay would freeze the procurement of critical services, leading to a detrimental impact on hospital hygiene and public safety. 23.Recognising that the Court’s jurisdiction in this matter is limited to reviewing the legality of the process rather than the merits of the tender requirements, the balance of convenience favours the continuity of the administrative process. 24.Consequently, while leave was granted to challenge the Board’s decision through a substantive motion, the prayer for a stay is denied to ensure the uninterrupted delivery of essential health-related services. Dated, Delivered and Signed at Nakuru this 25th Day of May, 2026. PATRICIA GICHOCHI JUDGE In the presence of: N/A by Applicant Mr. Munene Wanjohi for Respondent Ericson, Court- Assistant RULING HIGH COURTNAKURU JR. NO. E002 OF 2026 Page 7

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