What you need to know:
- Risk Africa first challenged award of the tender at the Public Procurement Administrative Review Board.
- Court of Appeal judges said they could not hear the matter as it had been time-barred.
The Court of Appeal has cleared the way for the electoral agency to confirm the award of tenders and sign contracts for supply of ballots and polling technology.
The court threw out a petition by bidders, who had sought a review of tenders issued by the Independent Electoral and Boundaries Commission (IEBC), for supply of ballot papers and Kenya Integrated Elections Management System (Kiems) kits. Justices Daniel Musinga, Roselyne Nambuye and Fatuma Sichale said the matter was time-barred.
“Having held that we are bereft of jurisdiction, the only logical thing for us to do is to down our tools,” the judges said in a March 4 judgment, ending what would have been a messy legal tussle for control of multibillion-shilling tenders at the commission.
IEBC had awarded the contract of the two tenders to foreign entities, but Risk Africa Innovatis Ltd moved to court challenging the award. The Sh3 billion ballot papers tender was awarded to Greek firm Inform P Lykos.
The Sh4 billion Kiems tender was awarded to a Dutch company, Smartmatic, and involves maintenance of software and hardware equipment and accessories for the voting kits.
Risk Africa first challenged the award of the Kiems tender through an appeal at the Public Procurement Administrative Review Board (PPARB).
PPARB nullified the tender and ordered IEBC to re-advertise it within 30 days of the decision. Although it was not part of the proceedings at the board, Smartmatic challenged the verdict at the High Court by way of a judicial review application, arguing that the board had acted beyond its powers and that its decision was irrational and illegal.
The High Court on October 26, 2021 quashed PPARB’s decision, saying, it did not understand the relevant provisions of the Public Procurement and Asset Disposal Act that regulates its decision-making powers.
In particular, the High Court ruled that PPARB had misread Section 2 of the Act on who a candidate is and whether Risk Africa qualified for such designation and was capable of applying for a review before it.
The High Court held that the board had unreasonably entertained a party (Risk Africa) — who was no more than a busybody in the proceedings — and, further, that it had assumed jurisdiction it did not have.
However, Risk Africa was dissatisfied with the decision of the High Court and lodged a notice of appeal on October 28, 2021 before the High Court and finally filed the appeal on January 12, this year, more than two months after the verdict.
In turn, Smartmatic filed a preliminary objection, in which it argued that the Court of Appeal had no jurisdiction to hear the appeal on account of expiry of time.
The firm said the High Court delivered judgment on October 26, 2021 and, pursuant to sections 175 (4) and (5) of the procurement Act, the jurisdiction of the Court of Appeal lapsed on December 17, 2021.
Section 175 of the Act mandates the High Court to determine a judicial review application within 45 days after such application has been filed. A person aggrieved by the decision of the High Court may appeal at the Court of Appeal within seven days of such decision and the Court of Appeal shall make a decision within forty-five days, which decision shall be final.
Sub section (5) states that if either the High Court or the Court of Appeal fails to make a decision within the prescribed timeline under subsection (3) or (4), the decision of the PPARB shall be final and binding to all parties.
Risk Africa filed its appeal on January 12, 2022. If the provisions of section 175 (4) had been followed, the appeal should have been filed within seven days, between October 26, 2021 and November 2, 2021.
“As at the date the appeal was filed, the seven-day period within which the appeal should have been filed had already lapsed,” the judges noted.