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Court of AppealAllowedCivil Appeal No. E143 of 2025 (consolidated with Civil Appeal No. 150 of 2025)

Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E143 & E150 of 2025 (Consolidated)) [2025] KECA 671 (KLR)

Court of Appeal of Kenya
11 April 2025
12,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~52 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that the procurement Review Board cannot decide issues nobody raised, quashed its decision and ordered the tender awarded to Vickers.

What this practically means

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Executive summary

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This consolidated appeal arose from a KRA tender for security services in which Lot 1 was awarded to Vickers Security Services Ltd as the lowest responsive bidder. Hatari Security Guards Ltd sought administrative review from the Public Procurement Administrative Review Board solely on the ground that Vickers failed mandatory requirement No. 20 regarding site visits at six specified stations. The Board dismissed that ground but, suo motu and without hearing the parties, examined Vickers' compliance with other requirements, found anomalies in site visit certificates for three stations and a deficiency in the Nairobi price schedule, declared Vickers' bid unresponsive, and nullified the award. The High Court (Chigiti, J.) dismissed judicial review applications challenging the Board's decision, prompting appeals by Vickers and KRA, consolidated by consent under rule 106 of the Court of Appeal Rules. The Court of Appeal allowed the appeal. It held that although the Board has jurisdiction under sections 28 and 167 of the Public Procurement and Asset Disposal Act, jurisdiction does not permit a tribunal to bestride proceedings like a Colossus: pleadings and the request for review define the dispute, and the narrow Odd Jobs v Mubia exception for unpleaded issues applies only where parties, by conduct, leave an issue to the tribunal. The Board violated Articles 47 and 50(1) of the Constitution by determining unpleaded issues without a hearing, and such a decision is a nullity. The Court held there was no discretion to deny judicial review remedies once a constitutional violation was established, set aside the High Court judgment, issued certiorari quashing the Board's decision, and ordered mandamus compelling KRA to award Lot 1 to Vickers, with costs to Vickers and KRA in both courts.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the High Court erred in law in holding that the Board has jurisdiction to consider unpleaded issues not raised in Hatari's request for review
  2. 2.whether the High Court erred in law and misinterpreted the jurisdiction of the Board under section 167 of the Act
  3. 3.whether the High Court erred in law and misdirected itself on what constitutes excess of jurisdiction, irrationality, and unreasonableness in judicial review

Key legal issues

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01

Whether the Board, having dismissed the only ground raised in a request for review, may nullify a procurement on grounds it raises suo motu without hearing the parties

Holding

No. The Board is bound by the grounds in the request for review and the parties' responses. Determining unpleaded issues without hearing the parties violates Articles 47 and 50(1) of the Constitution and renders the decision a nullity.

Reasoning

The Court traced the settled principle that pleadings define the dispute and a court or tribunal may not frame or determine issues not raised by the parties. The narrow Odd Jobs v Mubia exception applies only where the parties, by their conduct, leave an unpleaded issue to the tribunal, which was not the case here. Procedural fairness provisions in the Regulations and the non-derogable right to a fair hearing constrain the Board regardless of its review mandate. The Board raised issues on the Hola, Isiolo TSO and Isiolo Warehouse certificates and on mandatory requirement No. 2 without hearing anyone, based on doubts and questions rather than positive findings.

p. 19
02

Whether jurisdiction is conferred by law rather than pleadings, so that the Board may interrogate the entire procurement process

Holding

The Board has jurisdiction under sections 28 and 167 of the Act to review procurement disputes, but jurisdiction does not license a tribunal to conduct proceedings as it wishes; how it resolves disputes is regulated by the Constitution and the law, including the fair hearing guarantees.

Reasoning

The Court accepted that jurisdiction is conferred by law, not pleadings, but held that Articles 47 and 50 apply specifically to bodies that have jurisdiction. Regulation 218 relieving the Board of strict evidentiary rules is not a licence to oust the constitutional right to a fair hearing, which extends to tribunals and other dispute-resolution bodies. The constitutional procurement principles in Article 227 also bind the Board itself in resolving disputes.

p. 11
03

Whether the High Court erred in declining judicial review remedies despite established violation of natural justice

Holding

Yes. Once the appellants demonstrated a violation of their Article 50(1) right to a fair hearing, the High Court had no discretion to deny judicial review remedies.

Reasoning

The Court held that judicial review remedies are discretionary but discretion must be exercised judiciously; there is no discretion to violate or sanction violation of constitutional rights. Denial of a fair hearing is itself irrational, unreasonable and unlawful, and the resulting decision is null and void ab initio. The High Court's dismissal of the judicial review applications was therefore wrong and was reversed, with certiorari and mandamus issued.

p. 21

Legal principles established

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  • A tribunal with jurisdiction over a dispute, such as the Public Procurement Administrative Review Board, is bound by the pleadings and the request for review before it and may not raise and determine new, unpleaded issues without hearing the parties, as that would violate Articles 47 and 50(1) of the Constitution.
  • The exception allowing determination of unpleaded issues applies only where, from the conduct of the proceedings, the parties have clearly left the unpleaded issue to the court or tribunal for determination, and the constitutional right to a fair hearing has not been compromised.
  • A decision made in violation of the right to a fair hearing or the rules of natural justice is vitiated and is a nullity, regardless of whether the same result would have been reached had the parties been heard.
  • Judicial review remedies, though discretionary, cannot be denied where a party's constitutional right to a fair hearing has been violated; no discretion exists to sanction a violation of the Constitution.
  • The constitutional principles of public procurement under Article 227 cannot be advanced on the basis of violation of other constitutional principles, such as the right to a fair hearing; the Constitution must be read holistically.

Court orders

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  1. 1.The decision of the High Court dated February 21, 2025 is set aside
  2. 2.An order allowing the consolidated application for judicial review is substituted
  3. 3.An order of certiorari quashing the decision of the Board dated 6th January 2025
  4. 4.An order of mandamus compelling KRA and its Accounting Officer to award the Tender for Lot No. 1 in accordance with the Letter of Intention to Award tender, dated 2nd December 2024
  5. 5.Vickers and KRA to have the costs in the High Court and in this Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Consolidated judicial review applications (not specified)
Jurisdiction invoked
First appeal/judicial review appeal under section 175 of the Public Procurement and Asset Disposal Act, No. 33 of 2015; consolidation under rule 106 of the Court of Appeal Rules
Consolidated with
Civil Appeal No. 150 of 2025 (Kenya Revenue Authority & Another)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Ultimately, we find merit in the consolidated appeal and allow the same. The decision of the High Court dated February 21, 2025 is hereby set aside.
p. 22Disposition - reversal of the High Court
We further issue an order of certiorari and quash the decision of the Board dated 6th January 2025 and an order of mandamus compelling KRA and its Accounting Oficer to award the Tender for Lot No. 1 in accordance with the Letter of Intention to Award tender, dated 2nd December 2024.
p. 22Final orders - certiorari and mandamus
Vickers and KRA shall have the costs in the High Court and in this Court. It is so ordered.
p. 23Costs order
It determined issues which Hatari had not raised, without giving them an opportunity to be heard.
p. 21Violation of the right to a fair hearing
Denial of the right to be heard renders any decision made null and void ab initio.
p. 21Consequence of breach of natural justice
The regulations cannot be interpreted in a manner that voids expressly guaranteed constitutional rights.
p. 12Limits of regulation 218 on the Board's procedure
reviews must be conducted within law, not as fishing expeditions.
p. 14Limits on review powers

Issues in the judgment

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minor

Citation inconsistency for Njurukani & 2 Others v. Barasa: cited by Vickers as a High Court decision at [2023] KEHC 1250 (KLR) but later referred to by the Court as its own decision at [2023] KECA 1250 (KLR)

minor

Citation inconsistency for the Odinga v IEBC decision: cited as [2017] KESC 31 (KLR) in submissions but later as [2017] eKLR 31 (KLR)

minor

Inconsistent spelling of case names within the judgment: 'David Siring ole Tukai' versus 'David Sironga ole Tukai' and 'Odd Jobs v. Mubia' versus 'Odd Jobs v. Mubea'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E143 & E150 of 2025 (Consolidated)) [2025] KECA 671 (KLR)", Case Analysis (2025). Civil Appeal No. E143 of 2025 (consolidated with Civil Appeal No. 150 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/671/eng@2025-04-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.