Sicpa SA v Public Procurement Administrative Review Board & 2 others (Civil Appeal E474 of 2024) [2024] KECA 939 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that government buyers can add integrity clauses to tender documents, and companies with past procurement fines abroad can be excluded.
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 misdirected himself by failing to consider all the evidence and reaching a decision unsupported by evidence
- 2.Whether the judge erred in failing to conduct a merit review despite invocation of constitutional provisions (articles 10, 27, 50, 201 and 227)
- 3.Whether the impugned clause on 'organizational deficiency' discriminated against the appellant contrary to article 27 and offended article 227
- 4.Whether the 1st respondent's decision suffered from jurisdictional error, error of law or unreasonableness
- 5.Whether the term 'organizational deficiency' could found ineligibility although undefined in Kenyan law
- 6.Whether the impugned clause offended sections 2, 41, 55, 58, 62 and 80(3) of the PPAD Act
- 7.Whether a procuring entity has latitude to customize the Standard Tender Document to suit its needs
Key legal issues
#Scope of judicial review where constitutional provisions are invoked
The judge erred in holding that only order 53 applied, since the appellant had invoked constitutional provisions in its grounds, which would have required a merit review under the Dande principle; however, the judge in fact considered the merits, so no injustice resulted.
The Court accepted that entrenchment of judicial review under article 47 and the Fair Administrative Action Act expanded the grounds beyond common law, and that where constitutional provisions are invoked the court must undertake merit review. But on reading the High Court judgment, the judge did address the merits of each party's case and found the claim unsupported by evidence, so the error caused no miscarriage of justice justifying appellate intervention.
Discrimination under article 27
The impugned clause applied to all bidders and was not impermissibly discriminatory.
Applying the three-step test (differentiation, whether it amounts to discrimination, whether the discrimination is unfair), the Court found nothing to show the clause targeted the appellant alone. A clause setting eligibility requirements is not discriminatory unless it specifically bars a particular person while allowing others in similar situations. No cogent evidence proved targeting, and the clause met the constitutional standards of articles 10 and 227.
Whether the procuring entity may customize the Standard Tender Document
A procuring entity is permitted to customize its bid document to suit its needs, including adding eligibility criteria; the concurrent findings of the Review Board and High Court were affirmed.
The Review Board, after analysing sections 9, 58 and 70 of the PPAD Act and Regulation 68, held the entity has latitude to customize the standard document subject to the law. The Court agreed: this was an international tender, and the clause ensured that bidders who committed procurement-related malpractices anywhere do not benefit; it is underpinned by articles 10 and 227 and section 3(g) on international norms.
Mandatory eligibility criteria versus debarment under section 41
Section 41 debarment is a different process and is not a bar to mandatory eligibility clauses in a bid document.
The Court rejected the appellant's argument that ineligibility could only follow a debarment under section 41. All bids contain mandatory eligibility criteria, including clauses on fraud and corruption and on suspension or debarment; accepting the appellant's argument would entail that no bid document should contain mandatory eligibility criteria.
Burden of proof regarding 'organizational deficiency'
The appellant bore the evidential burden of showing the term had no adverse consequences to it and that the clause unfairly targeted it; it failed to discharge it.
Cases stand or fall on evidence. The clause applied to all bidders, not the appellant alone. Although the term is undefined in Kenyan law, it was not demonstrated that organizational deficiency cannot lead to an offence known to Kenyan law; under Swiss law it relates to corporate criminal liability for inadequate organization. The appellant also never disclosed the Swiss settlement details, leaving the courts below unable to make findings in its favour.
Alleged jurisdictional error, error of law and unreasonableness
None was established; the Review Board properly discharged its functions and its decision was neither erroneous nor Wednesbury unreasonable.
A jurisdictional error arises where a decision-maker exceeds its authority; nothing on the record showed the Board did so. On error of law, nothing in the arguments or the High Court judgment suggested one. On unreasonableness, the Wednesbury standard requires a decision objectively so devoid of plausible justification that no reasonable body could reach it, verging on absurdity; that threshold was not met.
Legal principles established
#- A procuring entity is permitted to customize the Standard Tender Document to suit its needs, provided the customization complies with the law.
- A clause in a bid document barring tenderers convicted of, or fined for, irregularities regarding government contracts, including 'organizational deficiency', is lawful and constitutionally underpinned by articles 10 and 227; mandatory eligibility criteria in bid documents are not rendered unlawful by the separate debarment process under section 41 of the PPAD Act.
- Where a party approaches the court under order 53 of the Civil Procedure Rules without claiming violation of rights or the Constitution, judicial review is confined to the decision-making process; where constitutional provisions are genuinely invoked, a merit review is required.
- Judicial review remedies are discretionary and are not granted automatically even where the threshold is attained.
- An appellate court will not interfere with a decision unless a misdirection occasioning injustice is shown; a judicial review court need not interfere merely because it could have reached a different conclusion.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Judicial Review No E101 of 2024
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judicial review decision (Constitution article 164; appeal from Judicial Review No E101 of 2024)
Relief refused
#Orders of certiorari, mandamus and prohibition sought in Judicial Review No E101 of 2024 (quashing the Review Board decision, expunging the impugned clause and barring the procurement process)
The appeal was found devoid of merit; the Review Board's decision and the High Court's judgment were free of misdirection and the impugned clause was lawful and constitutionally underpinned
Costs
The appeal was dismissed with costs to the respondents.
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.
it is our finding that this appeal is devoid of merit. Accordingly, we dismiss it with costs to the respondents.
We agree with the above finding. A Procuring Entity is permitted to customize its bid document to suit its needs.
A clause setting out eligibility requirements cannot be said to be discriminatory unless it specifically bars a particular person or entity and allows others in similar situations.
This provision deals with debarment which is essentially a different process, and it is not a bar to the mandatory eligibility clauses in a bid document.
In our view, such a clause not only enjoys constitutional underpinning under articles 10 and 227, but is also aimed at ensuring that public procumbent and asset disposal is not polluted by unethical and unscrupulous tenderers.
Judicial Review is no longer a common law prerogative, but is now a constitutional principle to safeguard the constitutional principles, values and purposes.
A judicial review court is not required to interfere with the findings of a trial court just because it could have arrived at a different conclusion. What is important is that the Court must be satisfied that there was a misdirection which occasioned injustice.
Issues in the judgment
#The judgment states the appellant filed 'High Court judicial review No E101 of 2024' and elsewhere refers to 'Judicial Review Application No E101 of 2024 R v The Public Procurement Administrative Review Board'; the appellate case number itself is not given in the judgment.
Case names appear to contain typographical errors in the judgment ('Rheir Shpping Co SA v Edmunds', likely 'The Ilheid/Rhei Shipping'; 'PAPRA' for 'PPRA'), reproduced here as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Newmatic Kitchen Kenya Limited v Musyimi (Employment and Labour Relations Appeal E206 of 2024) [2025] KEELRC 2626 (KLR)[2025] KEELRC 2626 (KLR)26 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Sicpa SA v Public Procurement Administrative Review Board & 2 others (Civil Appeal E474 of 2024) [2024] KECA 939 (KLR)", Case Analysis (2024). Civil Appeal (Court of Appeal, Nairobi), from Judicial Review No E101 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/939/eng@2024-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.