1.On 6th May,2022 this court upon finding that the 1st Respondent’s decision dated 17th March,2022 in Public Procurement Administrative Board Application No.16 of 2022: CPF Financial Services Limited vs. the Accounting Officer; Public Service Superannuation Scheme was marred with illegality, irrationality and unfairness directed the 1st Respondent herein to rehear/reconsider Application No.16 of 2022 taking into account the findings that this Honourable Court had made. The Applicant states that upon rehearing the matter the Board reached a decision that is identical to the one that this court quashed.
2.Consequently, the Ex parte applicant herein has now filed a Notice of Motion application dated 16th June,2022 seeking the following orders;i.An order of certiorari to bring into this Honourable Court, to be quashed, the 1st Respondent’s decision delivered on 3rd June 2022 in Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme (“the impugned decision”).ii.An order of mandamus compelling the 2nd and 3rd Respondents to award Tender No. PSS/003/2020-2021 Procurement of Fund Administrator for the Public Service Superannuation Fund (“the Tender”) to the Applicant;iii.An order of prohibition precluding the 2nd and 3rd Respondents and their officers, subordinates, servants and agents from terminating, re-advertising or awarding the Tender to any external administrator other than the Applicant;iv.An order of prohibition precluding the 2nd and 3rd Respondents and their officers, servants and agents from resorting to the internal administration of the Public Service Superannuation Fund.v.Alternatively, and without prejudice to the preceding, an order of mandamus compelling the 1st Respondent to re-admit Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme for the limited purpose of issuing appropriate and effective relief(s) taking into consideration the Judgment delivered by this Honourable Court on 6th May 2022 in Judicial Review Application No. E037 of 2022: Republic v Public Procurement Administrative Review Board and 2 Others ex-part CPF Financial Services Limited (“the first judicial review proceedings”).vi.An order directing the 2nd Respondent to show cause why she should not be—a.punished for contempt of court, for refusing to comply with the Orders issued by the 1st Respondent on 28th December 2021 in Application No. 148 of 2021: CPF Financial Services Limited versus the Accounting Officer, Public Service Superannuation Scheme; andb.declared as having breached Article 10 and Chapter Six of the Constitution and thus unfit to hold public office for refusing to comply with the Orders issued by the 1st Respondent on 28th December 2021 in Application No.148 of 2021: CPF Financial Services Limited versus the Accounting Officer, Public Service Superannuation Scheme.vii.An order directing the relevant members of the 1st Respondent (i.e., Faith Waigwa, Steven Oudo, Rahab Chacha and Ambrose Ogeto) to show cause why each of them should not be—a.punished for contempt of court, for refusing to comply with the Judgment delivered and the Orders issued by this Honourable Court (Ndungu J.) on 6th May 2022 in Judicial Review Application No. E037 of 2022: Republic v Public Procurement Administrative Review Board & 2 Others ex-parte CPF Financial Services Limited; and;b.declared as having breached Article 10 and Chapter Six of the Constitution and thus unfit to hold public office for refusing to comply with the Judgment delivered and the Orders issued by this Honourable Court (Ndungu J.) on 6th May 2022 in the first judicial review proceedings.viiiThe 2nd and 3rd Respondents shall reimburse the Applicant, on an indemnity basis, the costs of and incidental to—a.the Public Procurement Administrative Review Board Application No. 148 of 2021: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme; and;b.the Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme.ix.Such other, incidental or alternative relief(s) as this Honourable Court may deem fair and just given the 1st and 2nd Respondents’ apparent scheme of frustrating the Applicant through contempt of court, dilatory tactics and unending litigation.
3.The motion is supported by a Statutory Statement dated 14th June, 2022 and verified by the Affidavit of Hosea Kili sworn on the same date.
4.The ex parte applicant contends that the 1st Respondent’s decision of 3rd June,2022 hereinafter ‘the impugned decision’ encourages and rewards wrong doing by public officials in public procurement. Further, that it faces an imminent risk of suffering irreversible harm and damage.
5.The ex parte applicant also urges that the impugned decision is tainted with fundamental errors of law and fact as the 1st Respondent has failed to obey this court’s orders; it has also failed to follow binding precedents on a procuring entity’s interference with the tender validity period. Additionally, that the decision does not take into account the provisions of section 167(1) of the Procurement Act on computation of time.
6.The impugned decision is faulted for failing to find that the Applicant’s letter dated 7th January,2022 was based on the 1st Respondent’s ruling and orders of 28th December,2021 the Applicant’s letter was necessitated by the 2nd Respondent’s pattern of dilatory conduct and that the Applicant’s cause of action accrued at midnight on 11th February,2022 and therefore the Request for Review was filed within fourteen days as provided by statute.
7.The 1st Respondent is also faulted for failing to award the tender to the ex parte applicant based on the matter set out by this court at paragraph 12-15 and 31-42 in its judgment and the Replying Affidavit filed by the 3rd Respondent’s chairperson in the initial judicial review proceedings.
8.The impugned decision it is contended does not give effect to section 175(6) of the Public Procurement Act neither does it consider the 1st Respondent’s Ruling and Orders as an illusory or ineffective remedy given the provisions of section 40(1) of the Act.
9.The Ex parte Applicant contends that this court’s order directing the 1st Respondent to rehear/reconsider the second request for review was not an order permitting it to admit additional parties or issues or to reaffirm, restate or reiterate the findings, conclusions and orders that this Court’s First Judgment quashed.
10.On the Preliminary objection, the ex parte applicant contends that it does not meet the threshold as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as it is indisputable that this court has jurisdiction to determine the Application competently as provided under Article 165(6) of the Constitution, section 175 of the Public Procurement and Asset Disposal Act and section 11 of the Fair Administrative Action Act. The Ex parte Applicant urged that determination of a preliminary objection ought to dispose of the suit or entire case and not object to the grant of only some of the reliefs sought in a case.
11.It is the ex parte Applicant’s case that it is not open, in a hierarchical common law judicial system, for a lower court to ignore decisions of a higher court. The cases of Republic vs. Public Procurement Administrative Review Board & Another Judicial Review Application No.60 of 2020 and Advanced Gaming Limited v Betting Control and Licensing Board & 2 Others Judicial Review Application No.271 of 2019 are cited in this regard.
12.It is further urged that learned counsel for the 1st Respondent deliberately disobeyed the binding nature of the Court’s decision despite having had proper notice, and any action by the 1st Respondent that was contrary to this Honourable court is null and void. In support of this argument counsel cites the case of Katsuri Limited vs. Kapurchand Depar Sha  eKLR.
13.The ex parte applicant contends that the Interested Party failed at the Preliminary Evaluation Stage for want of a responsive tender and thus had no stake in the tender and the Application. Further that the Interested Party was not a party in either of the two Requests for Review and according to section 170 of the Act the mere fact that one submitted for a tender does not constitute one being a party in an application for review.
14.The case of Attorney General vs. David Ndii & 73 Others  KESC 17 [eKLR] is cited in this regard. It is the ex parte Applicant’s submission that this Court is obligated to confine its decision to the issues that are raised by the principal parties’ pleadings. To buttress this argument, the case of Francis Karioki Muruatetu & another vs. Republic & 5 others, Petition Nos. 15 and 16 of 2015 is cited.
15.The Interested Party is accused of failing to pursue its right as envisaged under the procurement process where an unhappy bidder has the option of lodging a request for review within fourteen (14) days.
16.The 1st Respondent in response to the application herein filed a preliminary objection on grounds reproduced herein below;i.THAT this court lacks jurisdiction to grant prayer 7 as pursuant to section 178 of the Act members of the Board are granted immunity from personal liability in civil or criminal proceedings in respect of any act or omissions done in good faith in the performance of their duties.ii.THAT this Honourable Court siting in this cause lacks jurisdiction to hear and determine contempt proceedings as moved vide prayer number 7 in the Notice of Motion Application as read with prayer number 5 in the Statutory Statement dated 14th June,2022 filed herein.iii.THAT there is no order from this Honourable Court in the instant cause (i.e. Judicial Review Miscellaneous Civil Application No. E086 of 2022) that warrants contempt proceedings as moved vide prayer number 7 in the Notice of Motion Application as read with prayer number 5 in the Statutory Statement dated 14th June ,2022 filed herein.iv.THAT the Notice of Motion Application is in any event fatally defective, bad in law and should be struck out with costs to the 1st Respondent in so far as the same relates to contempt proceedings as moved vide prayer number 7 in the Notice of Motion Application as read with prayer number 5 in the Statutory Statement dated 14th June, 2022 filed herein.”
17.The 1st Respondent also argues in its replying affidavit that there is no order from this Honourable court in the instant case that warrants contempt proceedings and that Faith Waigwa, Steven Oudo, Rahab Chacha and Ambrose Ogeto cannot be cited for contempt as they are not parties in the Judicial Review Application.
18.It is the 1st Respondent’s case that pursuant to the order of mandamus by the judicial review court, the Board re-heard/re-considered Review No. 16 of 2022 while taking into account the findings contained in the JR Judgment dated 6th May 2022 within 30 days, expressly holding as much in its determination in the Board's Decision of 3rd June,2022 at pages 35, 42, 50 and 70 thereof.
19.Further, that in arriving at the Board's Decision dated 3rd June 2022, the Board quoted paragraphs 53, 54, 35, 41, 39, 36, 37,38, 39, 41 and 42 of the JR Judgment dated 6th May 2022 at pages 39, 40, 42, 50, 51, 67, 68, 69 and 70 respectively.
20.The 1st Respondent in its decision observed that its decision dated 28th, December 2021 in Review No. 148 of 2021 was final and binding to the parties as none sought judicial review by the High Court. Further that it would only determine new issues raised in Review No.16 of 2022 whose occurrence took place after the Board's Decision dated 28th December 2021 in Review No.148 of 2021.
21.It is the 1st Respondent’s submission that the first issue the Board addressed was whether the 2nd Respondent, being the Accounting Officer of the Procuring Entity, complied with the orders of the Board as contained in the Board's Decision dated 28th December 2021 pursuant to the findings of this court in JR E037 of 2022 to which it came to the conclusion that the 2nd Respondent had failed comply with its orders as contained in the Decision dated 28th December 2021. This court according to the 1st Respondent did not find its decision illegal in regards to the first issue.
22.The second issue considered by the Board was whether the tender validity period of the subject tender had expired. Similarly, it is urged that the Board took into account the findings of this court as contained at paragraph 41 and it held that the 2nd Respondent, in breach of Section 88 of the Act and contrary to the second order (Order No.2) of the Board purported to extend the tender validity period of the subject tender twice for 30 days each, instead of once and restricted to not more than 30 days as provided under Section 88(3) of the Act.
23.This court again is said to have never found in its decision that the Board's determination on this issue was illegal, irrational or arrived at through procedural impropriety instead, the judicial review court faulted the Board for blaming the Applicant for the expiry of the tender validity period.
24.The Respondent’s submission is that the third issue the Board addressed was whether it can extend an already expired tender validity period and while observing the doctrine of precedent the Board held that the tender validity period of the subject tender having expired, the same was incapable of being extended and neither the 2nd Respondent nor the Board could extend the tender validity period of the subject tender after it expired on 11th January,2022. In making a determination on this third issue, the Board observed that the judicial review court never addressed this, presumably because the same was not an issue framed for determination in the Board's Decision of 17th March,2022.
25.The 1st Respondent also submitted that the fourth issue determined by the Board was the appropriate orders it could grant in the circumstances of Review No.16 of 2022.The 1st Respondent held that its hands were tied because the tender proceedings of the subject tender died a natural death on 11th January,2022 and that following the expiry of the tender validity period and no order with respect to a dead tender or non-existent procurement proceedings was capable of being enforced and that doing otherwise would be an exercise in futility.
26.The Board’s decision dated 3rd June,2022 was furnished to the Director General of the Public Procurement Regulatory Authority for purposes of taking any necessary action in law with respect to the Board's finding that the 2nd Respondent failed to comply with its orders as contained in the Board's Decision dated 28th December 2021.
27.It is further argued that the Board was under the impression that this court did not place an obligation on it to hold a different decision from its decision dated 17th March 2022 but instead, it was required to consider its jurisdiction and inherent powers by exercising its powers under Section 173. Further that the court had left the discretion of arriving at a decision to the Board.
28.The 2nd Respondent in its affidavit sworn by Alice K. Nyariki on 29th June,2022 contends that the 1st Respondent complied with this court’s judgment and reheard the matter and issued a decision on 6th June,2022.
29.The 2nd Respondent’s case is that the Scheme did not breach the Orders of the Board as due diligence could not be logically concluded within the stipulated period because of background checks being conducted, the scheme extended the tender validity from 20th January,2022 for a further 30 days which lapsed on 19th February,2022. Further, that as at the time the Request for Review No.16 of 2022 filed on 24th February,2022 was heard, the tender validity period had expired.
30.It was also argued that the Tender award could not happen by dint of section 87 of the Act and therefore the contract could not be entered into by either of the parties pursuant to section 135(3) of the Act. The ex parte Applicant is accused of trying to coerce the Scheme to award the tender to it contrary to section 66(1) of the Act yet the procurement process has not been completed. The 2nd Respondent denies being in contempt of any orders and contends that this court can only punish for contempt for orders issued by it and that the orders in question are those issued by the 1st Respondent and thus this court is devoid of jurisdiction.
31.The 1st Respondent is also said to have dealt with the issue of costs and therefore prayer 8 cannot issue. The application before this court is said to seek to challenge the merit of the 1st Respondent’s decision which falls outside the jurisdiction of this court.
32.The 3rd Respondent on the other hand reiterated the contents of its Replying Affidavit filed before this court in JR No.E037 of 2022;Republic vs. Public Procurement Board & 2 others Ex parte CPF Financial Services Limited.
33.The Interested Party also filed a Replying affidavit sworn by Anthony Wambua Kilavi on 29th June,2022 in which it is contended that, contrary to practice they only became aware of the re-hearing proceedings in Application No. 16 of 2022 and the applications that preceded the same, being the Application Number 148 of 2021 lodged with the 1st Respondent by the Ex-Parte Applicant, through this court’s judgment in E037 of 2022.
34.It is the Interested Party’s case that there is no evidence of any wilful and deliberate disobedience of the orders of this Honourable Court and that the courts have found that the only alternative when a tender validity period has lapsed and the same hasn’t been extended before its expiry is to commence a fresh procurement process. This according to the Interested Party is the route that this particular tender ought to take considering the time that has lapsed since the same was advertised.
35.The Attorney General filed written submissions dated 12th July,2022 on behalf of the 1st and 2nd Respondents herein. On the scope of judicial review learned counsel cited the cases of Pastoli vs. Kabale District Local Government Council and Others  2 EA 300, Republic vs. Public Procurement Administrative Review Board Exparte Giant Forex Bureau De’ Change Limited & 2 others  eKLR, Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd  eKLR and Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007  KLR 728.
36.The Respondents contend that the 1st Respondent discharged its function properly and made a determination of the issues in Request for Review No.148 of 2022 in the manner required by the Act and guided by the principles enshrined under Articles 10 and 227 of the Constitution. The cases of Kenya Pipeline Ltd vs. Hyosung Ebara Company Ltd  eKLR and Republic vs. Public Procurement Review Board &2 Others ex parte Numerical Machining Company Limited  eKLR are cited to buttress this argument.
37.It is learned counsel’s contention that as was held in the case of Republic v Public Procurement Administrative Review Board Exparte Giant Forex Bureau De’ Change Limited & 2 others  eKLR these being judicial review proceedings the court ought not interrogate the merits of the decision.
38.In opposition to the order of mandamus the Respondents urge that Mandamus is an equitable remedy that serves to compel a public authority to perform its legal duty and it is a remedy that controls procedural delays and further that the 1st Respondent reheard and issued a considered ruling while complying with the Judgment of this court and therefore orders 6,7 and 8 of the Notice of Motion must fail.
39.Further that there is no application for contempt filed before this court and or served to any of the 1st Respondent’s Board members to warrant issuance of contempt of Court orders as framed in the Notice of Motion. The cases of Mwangi H C Wang’ondu v Nairobi City Commission (UR) Court of Appeal Civil Appeal No 95/1988, Nyamodi Ochieng Nyamogo & another v Kenya Posts & Telecommunications Corporation  eKLR, Republic v Attorney General Ex parte Evalyene Khamasi Amboyi  eKLR and Jim Choge v Chief Land Registrar & 2 others; Amusement Garden Limited (Interested Party)  eKLR are cited in this regard.
40.According to the Interested Party there are 3 issues for determination as follows (i)whether the Interested Party has locus standi in these proceedings; ii) whether the 1st Respondent complied with the judgement as delivered by this Honourable Court in Judicial Review Application Number E037 of 2022 on 6th May 2022; iii) whether the Ex-Parte Applicant has made out a case for grant of Judicial Review Orders.
41.On the 1st issue, learned counsel for the interested party urged that pursuant to section 170 (d) of the Act the 1st Respondent has the discretion to allow any other person who it deems fit to participate in the review proceedings before it. Further, that the ex parte Applicant consented to the Interested Party’s joinder to these proceedings.
42.Learned counsel for the Interested Party on re-hearing of a matter submitted that a Court or Tribunal re-hearing a matter is obligated to look at and consider all the facts, evidence and circumstances surrounding the subject matter. Further that the 1st Respondent has the requisite powers to extend the validity of a tender as many times as it deems fit to guarantee a fair, equitable, transparent and competitive process. However, according to the Interested Party the extensions must be done before the lapse of the tender validity period.
43.The 2nd Respondent it is urged having failed to extend the tender validity period by the 11th January,2022 rendered the subject tender extinguished and no extension after its expiry can be made. It is counsel’s submission that one cannot breathe life to an expired tender. To buttress this argument, the cases of Judicial Review Number 50 of 2017; Higawa Enterprises Limited v Kenya Ports Authority & 6 others  eKLR, Telkom SA Limited v Merid Training (pty) Limited & Others, Bilhati Solutions (pty) Limited v Telkom SA Limited (2011) ZAPPHCI and Jourbert Galpin Searle Inc & Others v Road Accident Fund (2014) ZAECPEHC 19 are cited.
44.Learned counsel for the Interested Party submitted that as was held in the case of Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited (2018) eKLR it is not the role of a judicial review court to be involved in merit review.
ANALYSIS AND DETERMINATION
45.Having considered the Notice of Motion, statutory statement and verifying affidavit, the responses by way of grounds of opposition and Replying Affidavits as well as submissions by counsel The issues for determination are;1.Whether the preliminary objection raised in this matter is sustainable in law.2.Whether the Interested Party has locus standi in these proceedings.3.Whether the 1st Respondent complied with the judgement as delivered by this Honourable Court in Judicial Review Application Number E037 of 2022 on 6th May 20224.Whether the 2nd Respondent is guilty of contempt of the orders of the 1st Respondent dated 28th December 2021 and whether the Board members of the 1st Respondent are guilty of contempt of the orders of court contained in the judgement dated 6th May 20225.Whether the Ex-Parte Applicant has made out a case for grant of Judicial Review Orders sought.
1. Whether the preliminary objection raised in this matter is sustainable in law.
46.This issue touches on the jurisdiction of the Court to punish for contempt. Following the dictum in the Owners of Motor Vessel Mv ‘’Lilian S’’ vs Caltex Oil (Kenya) Ltd 1989 KLR 1 jurisdiction is everything and once a court finds that it is not seized of the requisite jurisdiction, it must not make any further step in the matter but to down its tools.
47.This question of jurisdiction has been raised in a preliminary objection. The first port of call is to determine whether the objection meets the legal threshold of a proper preliminary objection. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, had the following to say on circumstances when a Preliminary Objection may be raised;
48.The 1st Respondent in its Preliminary Objection challenges this court’s jurisdiction to hear and determine prayer 7 of the Ex parte Applicant’s application on grounds that it offends the provisions of section 178(1) of the Public Procurement and Asset Disposal Act,2015.
49.Prayer 7 of the ex parte applicant’s application reads as follows;viii.An order directing the relevant members of the 1st Respondent (i.e., Faith Waigwa, Steven Oudo, Rahab Chacha and Ambrose Ogeto) to show cause why each of them should not be—i.punished for contempt of court, for refusing to comply with the Judgment delivered and the Orders issued by this Honourable Court (Ndungu J.) on 6th May 2022 in Judicial Review Application No. E037 of 2022: Republic v Public Procurement Administrative Review Board & 2 Others ex-parte CPF Financial Services Limited; and;ii.declared as having breached Article 10 and Chapter Six of the Constitution and thus unfit to hold public office for refusing to comply with the Judgment delivered and the Orders issued by this Honourable Court (Ndungu J.) on 6th May 2022 in the first judicial review proceedings.
50.As stated above, a preliminary objection must consist of a pure point of law. It is not in contention that section 178(1) of the Public Procurement and Disposal Act,2015 provides for the protection from personal liability and indemnity of Board members. The Section provides as follows;
51.However, a person is only protected under this section if he/she in doing the act or omission was acting in good faith. The court in the case of Republic v Principal Secretary, Ministry of Interior and Coordination of Government & another Ex-Parte Lucy Nduta Ng’ang’a  eKLR held as follows;
52.It follows then that the question whether the Board members acted in good faith would of necessity invite interrogation and ascertainment of facts. The court in Junction Apartments Limited and C.M Construction (E.A) LTD & Steve Oundo  KEHC 429 (KLR) expressed itself in a similar circumstance as follows;
53.A similar position was taken by Meoli J in James Gacheru Kariuki & 69 Others vs William Gitau Kabogo & 104 Others where she stated;
54.The preliminary objection raised herein cannot, in light of the foregoing be sustainable.
2. Whether the Interested Party has locus standi in these proceedings
55.Vide a Notice of Motion dated 22nd February 2022, the Interested Party herein moved this court for orders to be enjoined in these proceedings. In view of the strict timelines governing the disposal of this matter, it was agreed that the Interested Party be admitted as a Party without responses being filed to its application with the Parties addressing the issue at the main trial. The question whether the Interested party is a proper party in these proceedings is live.
56.The Interested Party’s case is that it never participated in the Request for Review 16 of 2022 as they were never notified of the existence of the various review applications lodged with the 1st Respondent by the Applicant herein contrary to procedure on conduct of proceedings before the 1st Respondent. They only learnt of the reviews after the judgement of this court dated 6th May 2022. It is their case that the decision in this matter would impact them as they were a tenderer in the subject tender.
57.On notification of Review, Section 168 of the Public Procurement and Assets Disposal Act (PPAD) provides as follows;
58.On who are Parties to a review, Section 170 of the PPAD Act provides;
59.Rule 205 of the Public procurement and Asset Disposal Rules provides;(2)The notification of the filing of the request for review and suspension of procurement proceedings shall be communicated, in writing, by the Review Board Secretary.(3)Upon being served with a notice of a request for review, the accounting officer of a procuring entity shall within five days or such lesser period as may be stated by the Secretary in a particular case, submit to the Secretary a written memorandum of response to the request for review together with such documents as may be specified.(4)An accounting officer of a procuring entity who fails to submit the document within the stipulated period under paragraph (3), commits an offence and shall be liable to a fine not exceeding four million shillings or to imprisonment for a term not exceeding ten years, or to both.(5)The Review Board Secretary shall immediately notify all other parties to the review upon receipt of such documents from a procuring entity under paragraph (3).”
60.The law as stipulated above is clear on who is to be notified of the filing of a request for review, what action is to be taken by the respective players and the mandatory parties to a review. In the instant case the Interested Party was not the tenderer pronounced as the successful by the procuring entity. The interested Party did not lodge a Request for Review with the 1st Respondent. A proper reading of Section 170 of the PPAD Act readily shows that the fact of submitting a tender does not necessary make a tenderer a party in a request for review lodged under Section 167 of the PPAD Act.
61.I agree with the submission by counsel for the Applicant that the Act envisages that any Party unhappy with the outcome of a procurement process shall promptly lodge a request for Review with the 1st Respondent within 14 days of the act or omission complained of. The Interested Party did not lodge a Request for Review to ventilate the issues that it belatedly wishes to canvass being illegal extension of the tender validity, failure of notification of the 2nd Request for Review as well as the 1st Request for Review.
62.Lastly on this question, this court in its judgement dated 6th May 2022 gave directions which were specific to the parties then before it. The Board was directed to re hear the matter based on the material that had been presented before it, material that was presented to this court in the judicial review application and applying directions given to it by this court in its supervisory role. The Board had no mandate at all to overturn the orders of this court and proceed to enjoin other Parties in the proceedings and entertain new issues that had not been placed before this court. The joinder of the Interested Party in those re hearing proceedings was irregular. Consequently, for this and other reasons stated above the Interested Party is not a proper party before this court and is struck out.
3. Whether the 1st Respondent in its decision dated 3rd June 2022 complied with the judgement as delivered by this Honourable Court in Judicial Review Application Number E037 of 2022 on 6th May 2022.
63.This issue in essence seeks to answer the question surrounding the propriety of the Board’s decision dated 3rd June 2022. It calls for an examination whether the Board in the impugned decision herein followed the directions of the court as espoused in the judgement dated 6th May 2022. A cursory look at the impugned decision shows that the findings therein reaffirm, reiterate and restate the findings that this court had quashed in the judgement dated 6th May 2022.
64.The 1st Respondent has pleaded its decisional independence in the matter. It is apposite at this stage to acknowledge the Board’s jurisdiction donated by Section 28(1) as read with Section 167 of the Act. This court is alive to the caveat that this court should not usurp the mandate of the bodies or tribunals falling under its supervision. The Supervisory powers are constitutional and I find it necessary to set out the relevant Articles;Article 165;(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
65.The extent of that jurisdiction was well expounded in Republic vs Public Procurement Administrative Review Board & 3 Others Ex Parte Techno Relief Services Limited  eKLR where the court stated;
66.This long passage is important and relevant in these proceedings as it lays bare the extent of this court’s Supervisory jurisdiction over the Board. In the exercise of this jurisdiction there is no conflict of roles neither are there turf wars. The common calling and duty at both levels is to ensure that the aspirations of ‘’we the people’’ to have all state organs or any public entity contracting for goods or services do so in accordance with a system that is fair, equitable, transparent, competitive and cost effective as decreed by Article 227 of the constitution and in accordance with the Guiding Principles set out at Section 3 of the Act.
67.In the execution of that solemn duty, and as the hierarchical order dictates, the Board’s action are subject to the Supervision of this court. The import then is that the Board is bound by the decisions and directions of this court and I do not think for a moment that the Board has any wriggle room from such decisions or directions. The doctrine of precedence and hierarchy of courts militates against any thinking to the contrary.
68.The Applicant has in its submissions ably captured the import of the court’s judgement dated 6th May 2022. I reproduce the relevant paragraphs for their full meaning and effect;
69.It is clear beyond peradventure that these excerpts from the judgement of the court dated 6th May 2022 required the Board to re seize Request for Review Application no. 16 of 2022 as initially filed. There was no room for new parties or pleadings. The game changer was that the court had now directed the Board on the correct interpretation and the application of the law and on the legality of the Board’s decision. The court addressed in great detail the question of the tender validity period and its relevance in this matter. The court made a finding of fact that the procuring entity had deliberately ran down the clock with a view to achieving expiry of the tender validity period. The court’s finding was that such a rogue procuring entity cannot be allowed to hind behind the law to sanitize its injurious conduct, conduct that is inimical to the constitutional principles on accountable procurement processes in public procurement.
70.A comment on Section 88(3) of the Act is opportune. The section provides;
71.The extension envisaged by this section is by an accounting officer of a procuring entity. In my view, the section is not a bar to the Board to extend the validity period if for good reasons proffered in a request for review it is necessary to extend the validity period to achieve a public procurement of goods and services that is fair, equitable, transparent, competitive and cost effective to meet constitutional ethos. Am in agreement with Onyiego J, in Republic vs Public Procurement Review Board; Rhombus Construction Company (Interested Party) Ex Parte Kenya Ports Authority  EKLR where he stated;
72.I have carefully considered the decision by the Board in the re-hearing proceedings. In a nutshell, the Board made findings that;a.the tender validity expired on 11th January 2022b.the Applicant, the 1st Respondent and the 2nd Respondent could not extend the tender validity period after 11th January 2022;c.the appropriate relief for the 2nd Respondent's contempt of court, intransigence and deliberate refusal to obey the 1st Respondent's decision of 28th December 2021 lay in referring the matter to the Director General of the Public Procurement Regulatory Authority; andd.each party should bear its costs.
73.These findings fly directly on the face of this courts orders and directions contained in its judgement at paragraphs 35 to 41. They are tantamount to asking the court to re hear the earlier judicial review proceedings and rehash its judgement. The failure by the Board to follow the orders must be deprecated. It goes against the decision of the House of Lords in Cassel & Company Ltd vs Broome and Another  AC 1072 where the court held that it is not open, in a hierarchical common law judicial system, for a lower court to ignore decisions of a higher court. This trend, if allowed to thrive, would render this courts supervisory powers enshrined in the constitution impotent and render the judicial review jurisdiction useless and ineffective as a remedy.
74.Counsel for the Applicant has attempted to explain the unusual courage of the 1st Respondent in its deviation from this court’s judgement. He has raised issues relating to where the 1st Respondent is domiciled, (National Treasury), the appointing authority of the members, The position and role of the ag Chief Executive officer, the appointment of the members of the 3rd Respondent as well as the appointment of the Director General of the Public Procurement Regulatory Authority. This court is reluctant to delve into these allegations for the reasons that they touch on persons who are not party to this litigation and who obviously have no chance to be heard.
75.What is clear in the mind of this court is that the 1st Respondent has trodden the same path it did in the first hearing and determination of Request for Review no. 16 of 2022 suffering the same legal and procedural infractions. The decision made is thus not sustainable in law.Whether the 2nd Respondent is guilty of contempt of the orders of the 1st Respondent dated 28th December 2021 and whether the Board members of the 1st Respondent are guilty of contempt of the orders of court contained in the judgement dated 6th May 2022
76.Contempt of orders of the Review Board and of the judicial Review court at the High Court is a serious matter like contempt of any other orders of court. Explaining the duty to obey court orders, the court in the case of Hadkinson -vs- Hadkinson (1952) 2 ALL ER56 held as follows;
77.The Supreme Court in the case of Republic v Ahmad Abolfathi Mohammed & Another  eKLR held as follows;
78.I would add that contempt by public officers involved in public procurement arising from orders in procurement proceedings before the Board or before the High Court acquires a more alarming and disconcerting nature in that it is an affront to the constitutional aspirations of the people to have accountability in public procurement and is a breach of the National values and principles under Article 10 of the constitution. If found guilty, the court should readily declare such a person unfit to hold public office. This is true even where a member of the Board is the culprit or the entire Board as the case may be. It is worthy of note that the immunity granted under section 178 of the Act is not absolute.
79.Section 5 of the Judicata Act provides for punishment for contempt of Court. It states;
80.It is now trite that for a party to succeed in an application for contempt the applicant has to prove the terms of order, knowledge of the terms by the respondent and failure by the respondent to comply with the terms of the order. The decision in Samuel M.N. Mweru versus National Land Commission & 2 Others (Supra) summarized the conditions aptly as follows:i.the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;ii.the defendant had knowledge of or proper notice of the terms of the order;iii.the defendant has acted in breach of the terms of the order; andiv.the defendant's conduct was deliberate.’’
81.The orders that are said to warrant contempt of court are not issued in this matter. Contempt of court are special proceedings governed by special procedure. They attract penal consequences. They demand personal service. In Republic vs Attorney General Ex Parte Evalyene Khamasi Amboyi  EKLR the court stated;
82.In light of the above, I take the view that the prayers relating to contempt of court as raised in this application are unsustainable. The same ought to have been raised in the relevant matters where the orders were issued, served personally and specifically responded to.
5. Whether the Ex-Parte Applicant has made out a case for grant of Judicial Review Orders sought.
83.From the foregoing analysis and for reasons expounded hereinabove I find the Notice of Motion dated 16th June 2022 partially successful. The appropriate orders and which I make are as follows;i.An order of certiorari be and is hereby issued to bring into this Honourable Court, to be quashed, the 1st Respondent’s decision delivered on 3rd June,2022 in Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme.ii.An order of mandamus be and is hereby issued compelling the 1st Respondent to re-admit Public Procurement Administrative Review Board Application No. 16 of 2022: CPF Financial Services Limited v The Accounting Officer, Public Service Superannuation Scheme for the limited purpose of issuing appropriate and effective relief(s) taking into consideration the Judgment delivered by this Honourable Court on 6th May 2022 in Judicial Review Application No. E037 of 2022: Republic v Public Procurement Administrative Review Board and 2 Others ex-part CPF Financial Services Limited and the findings in this judgement within 30 days hereof.iii.An order of prohibition be and is hereby issued precluding the 2nd and 3rd Respondents and their officers, subordinates, servants and agents from terminating, re-advertising or and/or awarding the Tender for the administration of the Public Service Superannuation Fund to any external administrator other than the Applicant pending determination of the re hearing as per order (ii) above.
iv.An order of prohibition precluding the 2nd and 3rd Respondents and their officers, servants and agents from resulting to the internal administration of the Public Service Superannuation Fund pending determination as in (ii) above.v.Each party to bear its own costs.