Sinopec International Petroleum Service Corporation v Public Procurement Administrative Review Board & 3 others (Civil Appeal E012 of 2024) [2024] KECA 184 (KLR)
The bottom line
#Kenya's Court of Appeal scrapped a tender awarded to a bidder who priced in the wrong currency, confirming mandatory tender rules cannot be waived.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in finding that the Review Board lacked jurisdiction to entertain the Request for Review, or that the request was filed out of time
- 2.Whether the learned judge misapprehended section 78 of the Act on what transpires during tender opening
- 3.Whether the learned judge erred in finding that the cause of action arose on 13th June 2023 during tender opening
- 4.Whether the Evaluation Committee violated the law by declaring the 4th respondent's bid responsive notwithstanding non-compliance with Clause 34.1 of the bid documents (raised suo motto)
Key legal issues
#Whether time under section 167(1) of the Act began to run at the tender opening stage when the appellant learned of the 4th respondent's currency bid
No. Section 167(1) applies only to breach of a duty imposed on a procuring entity; since section 78(7) bars rejection of bids at tender opening, no breach by the procuring entity occurred on 13th June 2023, so the request for review was not time-barred
The court applied literal construction: section 167(1) speaks of breach of a duty imposed on a procuring entity, and Parliament deliberately did not extend it to tenderers. Section 78(7) forbids the Tender Opening Committee from rejecting bids, so the procuring entity commits no breach at that stage. Consequently, the appellant could not have invoked the Review Board's jurisdiction at tender opening and time did not run from that date. Regulation 203 could not override the statute.
Whether the Evaluation Committee erred in declaring the 4th respondent's bid responsive despite quoting in US Dollars contrary to Clause 34.1 (suo moto issue)
Yes. Clause 34.1 was couched in mandatory terms; declaring the bid responsive disregarded the bid documents and violated section 79 of the Act, rendering the award illegal and liable to be set aside
Responsiveness is the first hurdle for bidders; bids failing mandatory requirements must be excluded. Under section 79(2), only minor correctable deviations preserve responsiveness; quoting in a prohibited currency is a material nonconformity. A procuring entity is bound by its bid documents and mandatory conditions cannot be waived. The award founded on that illegality could not be endorsed, invoking the ex turpi causa principle.
Whether the Court could raise and determine a point of law not argued by the parties
Yes. Jurisdictional and legal issues may be raised at any stage, even suo motto, per Lempaka vs Aramat and Barclays Bank vs Pyritic Guards
Citing Supreme Court authority, the court held that issues of jurisdiction are fundamental and may be raised at any stage in any court; a party has no monopoly of the law. A point of law may also be raised on the court's own motion even if not canvassed below, particularly where it touches jurisdiction, competence or illegality of the proceedings or award.
Legal principles established
#- Section 167(1) of the Public Procurement and Asset Disposal Act contemplates review only for breach of a duty imposed on a procuring entity; no breach by the procuring entity occurs at the tender opening stage because section 78(7) bars rejection of bids at that stage, so time under section 167(1) does not begin to run at tender opening
- Regulations cannot override clear provisions of the parent statute; in the event of conflict the statute prevails
- A court of appeal may, on its own motion, raise and determine an issue of law not canvassed by the parties, particularly where it touches jurisdiction or illegality
- A procuring entity is bound by its own bid documents; a bid failing a mandatory condition such as pricing currency must be declared non-responsive, and an award founded on disregard of a mandatory term is an illegality
Court orders
#- 1.High Court decision reversed
- 2.Award of the subject tender to the 4th respondent set aside in its entirety
- 3.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- JR Miscellaneous Application No. E128 of 2023
- Jurisdiction invoked
- Appeal to the Court of Appeal against a High Court judicial review decision (section 167(1) framework of the Public Procurement and Asset Disposal Act; leave granted on 23rd November 2023)
Relief refused
#Reinstatement/remission of the Request for Review to the Review Board for re-hearing (mandamus) and prohibition orders
No appeal was preferred against the High Court's refusal to grant mandamus and prohibition, so those prayers could not be granted; the court instead set aside the tender award itself
Costs
Each party shall bear its own costs of the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, reverse the High Court decision and set aside the award of the subject tender to the 4th respondent in its entirety for the reasons herein above stated. Each party shall bear its own costs of the appeal.
Section 78 (7) bars the Tender Opening Committee from rejecting a bid. Therefore, the procuring entity cannot be said to have committed a breach at this stage.
A procuring entity is bound by its bid documents. Mandatory conditions cannot be waived.
The ensuing award of the tender to the 4th respondent is founded on an illegality.
In any event, it is the law that Regulations cannot override clear provisions of the mother statute and in the event of a confiict, the provisions of the statute prevail.
Issues in the judgment
#The judgment refers to 'Article 277 of the Constitution' in discussing the legislative framework for procurement policy, which appears to be a typographical error for Article 227, earlier quoted as the procurement provision
Internal inconsistency in scope of appeal: the judgment notes the memorandum of appeal states it is against part of the judgment but its prayers seek to overturn the entire judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sharpcut Designers Ltd v Public Procurement Administrative Review Board & 2 others (Civil Appeal E273 of 2025) (20 June 2025) (Reasons) [2025] KECA 1132 (KLR)[2025] KECA 1132 (KLR)20 Jun 2025
- Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E143 & E150 of 2025 (Consolidated)) [2025] KECA 671 (KLR)[2025] KECA 671 (KLR)11 Apr 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Sinopec International Petroleum Service Corporation v Public Procurement Administrative Review Board & 3 others (Civil Appeal E012 of 2024) [2024] KECA 184 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/184/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.