Jamari Enterprises Limited v Public Procurement Administrative Review Board & 2 others (Civil Appeal E076 of 2026) [2026] KECA 554 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that procurement complaints raised too early in a tender process can be dismissed as premature, and courts will not second-guess the Review Board.
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 High Court properly applied the principles governing judicial review in declining to interfere with the decision of the Board.
- 2.Whether the Board properly exercised its statutory mandate in addressing the appellant's complaints concerning the alleged illegalities in the Tender Document and procurement process.
- 3.Whether the Board and the High Court erred in holding that the appellant's challenge to the Tender Document was premature in the circumstances of the procurement process.
- 4.Whether the appellant has demonstrated any illegality, irrationality, procedural impropriety, or constitutional violation in the procurement process warranting the intervention of this Court.
Key legal issues
#Scope of judicial review in procurement matters
The High Court properly directed itself on the limits of judicial review; the supervisory jurisdiction examines the legality, rationality and procedural propriety of the decision-making process, not the correctness of the decision.
The Court restated the classic illegality, irrationality and procedural impropriety grounds from Council of Civil Service Unions, and noted that while the post-2010 dispensation and the Fair Administrative Action Act have expanded review to include reasonableness and proportionality, this expansion does not make the High Court an appellate forum. The Board had heard the parties, considered pleadings and authorities, and given a reasoned determination, so the judge could not be faulted for declining to substitute her own view.
Whether the Board properly exercised its statutory mandate
The Board actively engaged with the appellant's complaints and addressed them within the applicable legal framework; its findings on the bidding period, the cost handbook and the impugned clauses were lawful and rational.
The restricted tender limited to local companies was permitted under section 102(2) of the PPADA and Regulation 89(7) of the Regulations, which require only a seven-day minimum preparation period; the actual period was 22 days, extended to about 30 days. The appellant failed to use the clarification mechanism under Clause ITT 8.2. The cost handbook was accessible on the procuring entity's website, and the contra proferentem principle would protect bidders against ambiguity. No error of law was demonstrated.
Prematurity of the challenge to the Tender Document
The Board's finding that the challenge was premature fell squarely within its statutory mandate; no bidder had suffered loss, and clarifications and addenda remained available.
The doctrine of exhaustion of remedies, statutorily expressed in section 9 of the Fair Administrative Action Act, requires litigants to exhaust available administrative remedies first. The Board did not decline jurisdiction but considered the issues and concluded the challenge was premature because the process had not reached bid submission or evaluation. That conclusion was neither irrational nor a failure to exercise jurisdiction, and the High Court correctly agreed.
Alleged constitutional violations under Articles 47 and 227
The alleged violations of constitutional procurement principles were not substantiated; the process incorporated mechanisms for clarification, compliance and participation.
The record showed compliance with statutory safeguards including anti-corruption declarations, procurement planning and ethical standards. The appellant did not demonstrate that the framework was discriminatory, opaque or exclusionary, and had not availed itself of the clarification mechanisms. Public interest considerations weigh against disrupting lawful procurement processes essential to delivery of public services, particularly electricity infrastructure.
Legal principles established
#- Judicial review is concerned with the legality of the decision-making process, not the merits of the decision; a court reviews for legality, rationality and procedural propriety.
- Decisions of the Public Procurement Administrative Review Board, as a specialized statutory tribunal, should not be lightly interfered with by courts absent excess of jurisdiction, error of law, irrationality or procedural unfairness.
- A challenge to tender document provisions is premature before the procurement process has progressed to bid submission or evaluation, where clarifications and addenda remain available to bidders.
- The expansion of judicial review under Article 47 and the Fair Administrative Action Act does not convert the High Court into an appellate forum over every administrative decision.
Court orders
#- 1.The appeal is dismissed in its entirety.
- 2.The Judgment and Decree of the High Court (Hon. Lady Justice R. E. Aburili) delivered on 27th January 2026 in Judicial Review Application No. E406 of 2025 is upheld.
- 3.The costs of this appeal and of the proceedings in the High Court shall be borne by the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Application No. E406 of 2025
- Jurisdiction invoked
- Not expressly stated in the judgment; the appeal is against a High Court judicial review decision and lies to the Court of Appeal under Article 164(3) of the Constitution
Relief refused
#Interference with the Review Board's decision of 3rd December 2025 and the High Court's judgment (the judicial review remedies of certiorari, mandamus and prohibition previously sought)
The appellant failed to demonstrate illegality, irrationality, procedural impropriety or constitutional violation; the Board's finding of prematurity fell within its statutory mandate under section 173 of the PPADA.
Costs
The costs of this appeal and of the proceedings in the High Court shall be borne by the appellant.
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.
In the circumstances, we are satisfied that the appeal is devoid of merit, and it is hereby dismissed in its entirety.
The Judgment and Decree of the High Court (Hon. Lady Justice R. E. Aburili) delivered on 27th January 2026 in Judicial Review Application No. E406 of 2025 is hereby upheld.
The costs of this appeal and of the proceedings in the High Court shall be borne by the appellant.
Judicial review is not concerned with the merits of a decision but with the legality of the decision-making process.
From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
the expansion of judicial review does not convert the High Court into an appellate forum over every administrative decision. Courts remain concerned primarily with the legality and propriety of the process, not the correctness of the decision itself.
Where there is an alternative remedy, and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted.
It is, I believe, settled law that a court exercising judicial review jurisdiction is concerned with the decision-making process and not with the merits of the decision itself.
Issues in the judgment
#The quotation from Republic v County Government of Mombasa Ex Parte Outdoor Advertising Association of Kenya appears truncated/garbled, containing only a fragment of the purported quote.
The judgment text contains apparent OCR/typographical errors within quoted and body text, which may affect verbatim citation accuracy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamari Enterprises Limited v Public Procurement Administrative Review Board & 2 others (Civil Appeal E076 of 2026) [2026] KECA 554 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/554/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.