Republic v Permanent Secretary, State Department for Correctional Services; Ex Parte Applicant: Daniel Ng'ang'a Wanyoike [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi
Category
Civil
Judge(s)
P. Nyamwea
Judgment Date
September 28, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Republic v Permanent Secretary, State Department for Correctional Services; Ex Parte Applicant: Daniel Ng'ang'a Wanyoike [2020] eKLR

1. Case Information:
- Name of the Case: Republic v. Permanent Secretary, State Department for Correctional Services
- Case Number: Judicial Review Application No. 113 of 2020
- Court: High Court of Kenya
- Date Delivered: 28th September 2020
- Category of Law: Civil
- Judge(s): P. Nyamwea
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include:
- Whether the ex parte Applicant has a valid claim to quash the Respondent's advertisement for tenders for the years 2019-2022.
- Whether the ex parte Applicant has grounds to compel the Respondent to cancel the first invitation to tender for the year 2019-2020.

3. Facts of the Case:
The ex parte Applicant, Daniel Ng’angá Wanyoiike, filed an application against the Permanent Secretary of the State Department for Correctional Services, claiming that the Respondent improperly advertised tenders for the supply of various goods despite an existing tender for the year 2019-2020. The Applicant alleged that the Respondent's actions led to bias in awarding tenders to preferred suppliers, which could result in financial losses to the public due to inflated prices. The Respondent, however, defended the tender process, asserting compliance with the Public Procurement and Asset Disposal Act and denying any allegations of bias or procedural irregularities.

4. Procedural History:
The application was initially filed in the Kiambu High Court but was transferred to the High Court of Kenya in Nairobi due to jurisdictional issues. The Applicant sought an order of certiorari to quash the tender advertisement and an order of mandamus to compel the Respondent to cancel the first invitation to tender. The court ordered an inter partes hearing to determine whether leave to commence judicial review should be granted. The Applicant later filed additional motions seeking to cite the Respondent for contempt of court and to join another interested party, which were contingent on the outcome of the initial application.

5. Analysis:
- Rules: The court considered the provisions of the Public Procurement and Asset Disposal Act, specifically sections 167, 168, and 175, which outline the review process for public procurement disputes and the requirement for applicants to be candidates or tenderers in the tender process.
- Case Law: The court referenced *Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others* and *Sharma vs. Brown Antoine* to establish the standard for granting leave for judicial review, emphasizing the necessity of an arguable case and the importance of timely applications.
- Application: The court determined that the ex parte Applicant's request to quash the tender advertisement was time-barred, as it was filed over two years after the advertisement. The court also found that the Applicant failed to provide evidence of the tender he sought to compel the Respondent to cancel, leading to a conclusion that there was no arguable case for the prayers sought.

6. Conclusion:
The court denied the ex parte Applicant’s request for leave to commence judicial review proceedings, dismissing the application on the grounds of inordinate delay and lack of evidence. The dismissal of the initial application also rendered subsequent motions moot, resulting in their striking out.

7. Dissent:
There were no dissenting opinions as the ruling was unanimous.

8. Summary:
The High Court of Kenya ruled against the ex parte Applicant, determining that he did not present a timely or substantiated claim regarding the Respondent's tender process. This case underscores the importance of adhering to statutory timelines in judicial review applications and highlights the procedural safeguards in public procurement to ensure fairness and accountability. The ruling reinforces the need for applicants to substantiate their claims with adequate evidence to succeed in judicial review proceedings.

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