The High Court has stopped the country's procurement regulatory agency from investigating alleged corruption and irregularities in a multibillion-shilling tender for inspection of imported cars.
Justice Jairus Ngaah also barred the Public Procurement Regulatory Authority (PPRA) from adopting a report of the investigators dated April 29, 2020.
Under the tender, known as the Pre-Export Verification of Conformity (PVOC) to Standards Services, motor vehicles are inspected in their countries of origin before they are imported.
The orders followed a judicial review application filed by Dubai-based Premier Verification Quality Services, which challenged the PPRA’s decision to look into alleged procurement irregularities.
The company was one of the successful bidders in the tender advertised by the Kenya Bureaus Standards (Kebs) in December 2019.
Investigators wanted to find out whether Kebs followed due process under the Public Procurement and Assets Disposal Act.
Among the interim findings and observations was that the procurement was not based on an indicative or approved budget, contrary to section 53(5)(8) of the Act.
PPRA told the court that the issues raised by an aggrieved bidder to the agency were different from those it was investigating.
It was on that basis, as well as a complaint by Naivana Agencies Ltd on March 2, 2020, that PPRA decided to look into claims by a whistleblower on December 20, 2019.
PPRA Director-General Maurice Juma said it was in the public interest for the entire procurement process to be investigated to determine whether Kebs complied with the law.
But Justice Ngaah ruled that PPRA lacked the powers to investigate the matter, having been the subject of a dispute filed at the Public Procurement Administrative Review Board by one of the bidders - Tuv Austria Turk.
He pointed out that the Public Procurement Asset Disposal Act bars PPRA from investigating procurement disputes that are under review by the board.
The judge found that PPRA acted unlawfully in investigating and compiling a report on the tender, which was the subject of review proceedings.
He also said that the Dubai-based firm was treated unfairly and its interests as a successful bidder were likely to be affected by the investigations and report.
"It is my finding that not only was the applicant not accorded an opportunity to be heard, but also that the (PPRA) investigations and report were also procedurally unfair," the judge ruled.
The Dubai company’s manager, Abdiwali Ali Mohammed, said he was apprehensive that the report indicated that it was conclusive and that PPRA would terminate the procurement.
The protest was supported by Kebs, which told the court that PPRA had no powers to proceed with the investigations after February 18, 2020, when the review board made its decision.