Kivuku Agencies v Kenya Airport Authorities Accounting Office & another [2020] eKLR Case Summary

Court
Court of Appeal at Mombasa
Category
Civil
Judge(s)
Ouko (P), Koome & Musinga, JJ.A
Judgment Date
October 09, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Kivuku Agencies v Kenya Airport Authorities Accounting Office & another [2020] eKLR case summary, detailing key legal findings and implications in this significant judgment.

Case Brief: Kivuku Agencies v Kenya Airport Authorities Accounting Office & another [2020] eKLR

1. Case Information:
- Name of the Case: Kivuku Agencies v. Kenya Airport Authorities & Another
- Case Number: Civil Appeal No. 132 of 2018
- Court: Court of Appeal at Mombasa
- Date Delivered: 9th October 2020
- Category of Law: Civil
- Judge(s): Ouko (P), Koome & Musinga, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve are:
- Whether the trial judge erred in determining that the tender validity period had lapsed and could not be reinstated.
- Whether the appellant was entitled to an order for costs.

3. Facts of the Case:
The appellant, Kivuku Agencies, submitted the lowest bid for tender No. KAA/388/2017 for cleaning services at Moi International Airport. However, the bid was rejected because the appellant did not submit a CR 12 certificate, which the appellant argued was an unreasonable requirement as it was a sole proprietor. The appellant challenged this decision before the Public Procurement Administrative Review Board, which annulled the tender award to the second lowest bidder and instructed the procuring entity to either reinstate the appellant in the tender process or start afresh if the tender validity had lapsed. The respondents chose to re-tender, prompting the appellant to seek judicial review in the High Court, arguing that this violated the Board's decision.

4. Procedural History:
The High Court, presided over by Ogola, J., found that the tender's validity had lapsed prior to the Board's decision and thus ruled that the respondents were justified in terminating the tender and starting the process anew. The appellant filed an appeal against this decision, raising several grounds, primarily questioning the lapse of the tender validity period and the denial of costs.

5. Analysis:
- Rules: The relevant statutes considered include the Public Procurement and Asset Disposal Act, particularly Sections 87 and 88, which address tender validity and extension.
- Case Law: The court referenced previous cases, including *Emfil Limited vs. Registrar of Titles Mombasa* and *Pastoli vs. Kabale District Local Government Council*, to establish the grounds for judicial review, emphasizing the need to show illegality, irrationality, and procedural impropriety.
- Application: The court applied these rules and case law to determine that the respondents acted within their rights by re-tendering after the tender validity had lapsed. The Judge highlighted that the Board's orders were alternative, and the respondents' choice to start afresh was not unreasonable.

6. Conclusion:
The Court of Appeal dismissed the appellant's appeal, affirming the High Court's decision that the tender validity had indeed lapsed, and thus the respondents were justified in their actions. The court also upheld the decision regarding costs, determining that each party should bear its own costs due to the shared measure of success in the litigation.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The case illustrates the complexities of public procurement law, particularly regarding tender validity periods and the implications of administrative decisions. The ruling reinforces the discretionary power of procurement entities in managing tenders and highlights the importance of compliance with statutory requirements. The decision serves as a precedent for future cases involving disputes over tender processes and administrative review boards in Kenya.

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