M/S Joint Venture of Zamara Actuaries, Administrators and Consultants Limited and Minet Kenya Financial Services Limited v CPF Financial Services Limited; Public Procurement Administrative Review Board & 2 others (Interested Parties)
The bottom line
#Kenya's Court of Appeal confirmed that a losing bidder who misses the 14-day procurement review window loses the right to be heard.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a non-successful bidder in procurement review and judicial review proceedings
The appellant, whose bid was non-responsive and who never lodged a request for review, had no locus standi; the High Court correctly struck it out.
Section 170 of the PPAD Act defines parties to a review; the appellant fell in none of the categories. It did not lodge a request for review within the 14-day period under section 167, and its bid had been found non-responsive. The Board's joinder of it in the re-hearing was irregular, and the High Court's supervisory directions were specific to the parties then before it.
Sustainability of the preliminary objection on locus standi and limitation
The preliminary objection was sustainable; the appeal failed on that basis.
The court found the appellant knew or ought to have known its bid was non-responsive when tenders were opened, and if aggrieved should have sought review within fourteen days. Its grievances were therefore statute-barred and it lacked standing, upholding the High Court's finding on the preliminary objection.
Legal principles established
#- Submitting a tender does not of itself make a tenderer a party to a request for review under section 167 of the PPAD Act; only the categories in section 170 qualify.
- A bidder aggrieved by a procurement decision must seek administrative review within fourteen days of the tender opening date or occurrence of the breach.
- A bidder whose tender has been found non-responsive may properly be refused joinder late in review proceedings, even where the Board has power under section 170(d) to add parties.
Court orders
#- 1.Appeal dismissed with costs to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Misc. Application No. E086 of 2022
- Jurisdiction invoked
- Appeal under the Court's appellate jurisdiction (rule 77 of the Court of Appeal Rules) against the High Court's judgment in judicial review proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M/S Joint Venture of Zamara Actuaries, Administrators and Consultants Limited and Minet Kenya Financial Services Limited v CPF Financial Services Limited; Public Procurement Administrative Review Board & 2 others (Interested Parties)", Case Analysis (2022). Civil Appeal E509 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/983/eng@2022-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.