LEGAL OPINION ON SECTION 100 (4) OF THE PUBLIC PROCUREMENT AND DISPOSAL ACT

BASIS OF JUDICIAL REVIEW

Judicial review plays an important role in our society which is to check excesses, omnipotence, arbitrariness abuse of power and also accountability and maintenance of constitutionalism and the rule of law. As Chief Justice Marshall powerfully argued in the Case of MARBURY v MADISON 5 us 137 (1803), judicial review provides the best means of enforcing the peoples’ will as declared in the written Constitution, without resort to the drastic remedy of revolution. He warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what is deemed the greatest improvement on political institutions - a written constitution.

Judicial review is a tool used by the High Court to ensure that public institutions exercise power in accordance with the law. It is still within the jurisdiction of the High Court to review legislation in order to establish whether it complies with the Constitution. Judicial review also enables the High Court to review acts, decisions and omissions of public authorities in order to establish whether they have exceeded or abused their power.

RIGHT TO JUDICIAL REVIEW

Section 100 (1) of the Public Procurement and Disposal Act provides that decisions of the Public Procurement Administrative Review Board are final binding on all the parties. Section 100 (2) however grants to parties a right of appeal to the High Court by way of judicial review, and the High Court’s decision is final. The application for review must be made within 14 days from the date of the Board’s ruling. Often, applicant with legal representation complies with timelines for commencing the judicial review proceedings.

SOURCE OF LAW GOVERNING PROCEDURE FOR JUDICIAL REVIEW

The High Court also has powers of judicial review arising from the Constitution, the Law Reform Act, and the supporting Order LIII of the Civil Procedure Rules.

EFFECT OF SERVICE OF NOTICE OF JUDICIAL REVIEW

Where leave to apply for judicial review has been granted by the High Court, the service of such a notice (notice of judicial review) act as a stay any action on the procurement process and the decision of the Board. It would therefore be unlawful for a procuring entity to proceed with any part of the procurement process once a notice of judicial review has been served on the procuring entity, and any action by such party purporting to proceed with the procurement process would be found null and void.

As such, a procuring entity must halt all steps concerning the procurement as soon as it receives a notice. However, any action taken before the service of notice of judicial review is valid unless otherwise reversed by the High Court exercising its judicial review jurisdiction.

LEGALITY OF SECTION 100 (4) OF THE PUBLIC PROCUREMENT AND DISPOSAL ACT

Section 100 (4) of the Public Procurement and Disposal Act provides that:

“If judicial review is not declared by the High Court within thirty days from the date of filing, the decision of the Review Board shall take effect.”

The import of this section is that judicial review proceedings must be finalized within 30 days from the date when the application for judicial reviewed was filed with the High Court.

The spirit behind this Section was to ensure that the public interest is served in the least amount of time possible and that projects are carried out expeditiously by making sure that judicial review applications are heard within 30 days from the date of filing the application. It aimed to ensure that there are no delays in finalizing the tenders intended to improve the welfare of Kenyans and that funds are disbursed expeditiously to commence the project hence the limitation of time on judicial review process which guarantees that the process is quick and efficient.

JUDICIAL INTERPRETATION OF THE SECTION

The High Court of Kenya in the case of REPUBLIC V PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD AND ANOTHER EX PARTE SELEX SISTEMI INTEGRATI [2008] EKLR however found the section to be unconstitutional, and therefore null and void. Accordingly, the section is no longer operative and judicial review proceedings are litigated at the speed and discretion of the Court, subject only to constitutional and other general statutory requirements for expediency of court proceedings.

The findings of the court in the cited case, and which are applicable to the present case, were that:

1.       Neither the Constitution of Kenya, the Law Reform Act nor order LIII of the Civil Procedure Rules, put a time limit on when the High Court should determine an application for judicial review.

2.       The public interest served by the judicial review as expressed in section 65(2) of the then Constitution is to ensure that inferior Courts, tribunals and administrative bodies act lawfully, fairly, transparently and reasonably and upholding the preliminary objection would defeat that very reason;

3.       The issue of the time within which a court must determine a suit is an issue of procedure set out under order LIII of the Civil Procedure Rules which does not make any time limits on the period within which the High Court should make a decision;

4.       Section 100(4) of the Public Procurement and Disposal Act, 2005 only provides a right to relief by way of judicial review but not the procedure to be followed in judicial proceedings;

5.       The Section principally seeks to oust jurisdiction of the Court by limiting the time within it must here and determine a review application;

6.       Legislative provisions which suggest a curtailment of the courts’ power of review give rise to a tension between the principle of legislative mandate and the judicial fundamental of access to courts;

7.       The then Section 77(9) of the then Constitution (now provided for under Article 50 of the Constitution 2012) stated that:

“A court or other adjudicating authority prescribed by law for determination of the existence or extent of a civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by a person before such a court or other adjudicating authority, the case shall be given a FAIR HEARING WITHIN A REASONABLE TIME.”

8.       Reasonable time would depend on the circumstances of the case and other relevant factors that the court must consider;

9.       The Court appreciated that one of the objects of the said Act in section 2(a) was to maximize economy and efficiency. However, while time is of essence in carrying out projects, speed cannot override justice; and

10.    Applications filed in court for judicial review are brought under sections 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya and Order LIII of the Civil Procedure Rules.  Accordingly, the Public Procurement and Disposal Act, 2005 cannot purport to introduce any other procedure apart from what is known in law and practice.

CONCLUSION

In view of the above, we advice that state corporations and public bodies cannot successfully rely on section 100 (4) of the Public Procurement and Disposal Act to justify proceeding with the procurement process upon expiry of 30 days from the date of filing of the application for review, as the section has since been declared unconstitutional, and therefore null and void for all intents and purposes.

Once an application has been filed for a judicial review and the public body duly served with the same, it is best to let the court determine the matter whereafter such public body should proceed with the relevant procurement process as the High Court may direct.

We hope this opinion settles your concerns on the matter under reference and or judicial review matters generally. Nonetheless, please feel free to contact us at ceo@stralexgroup.co.ke, panam@stralexgroup.co.ke or okelloted@sichangi.com for further any further information or clarification. You may also reach us on +254 773 865 798 or +254  720 756 343.

Yours faithfully,

For: Strategic Legal Solutions Group Limited

Centre for Litigation & ADR Process – a participating consultancy in the SLS Group of consultancies.