Challenging a Government Procurement Decision Through Judicial Review in Kenya

Judicial Review Procurement Decisions Kenya questions almost always come from a bidder who has just lost a tender and wants to go straight to the High Court. That instinct is understandable and, in procurement disputes specifically, wrong. Kenya’s public procurement framework is the one area of administrative law where an aggrieved party must generally clear a mandatory first-instance forum before a court will even entertain the matter, and missing the deadline to do so is fatal in a way few other administrative disputes are.

PPARB Comes First, and the Clock Is Short

Section 167(1) of the Public Procurement and Asset Disposal Act 2015 allows a candidate or tenderer who claims to have suffered or risks suffering loss from a procuring entity’s breach of the Act to seek administrative review before the Public Procurement Administrative Review Board within fourteen days of notification of the award, or of the date of the alleged breach. Lodging that request requires a refundable deposit under section 167(2), and section 168 automatically suspends the procurement proceedings the moment the request is lodged. The Board itself must complete its review within twenty-one days under section 171(1).

The Court of Appeal set out why this sequence matters in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104, describing the Review Board as a specialised statutory tribunal obviously better equipped than the High Court to handle procurement breach disputes, and holding that the High Court had erred by re-adjudicating facts the Board had already properly decided rather than confining itself to reviewing the decision-making process. That case remains the foundational statement of why courts defer to PPARB in the first instance.

The fourteen-day window is enforced strictly, not as a guideline. In Republic v Public Procurement Administrative Review Board; Accounting Officer, KenGen & 2 Others; Sinopec International Petroleum Service Corporation [2024] KEHC 16676, the High Court upheld PPARB’s finding that a request lodged out of time was time-barred, holding that the effluxion of time took away the Board’s jurisdiction entirely. Republic v Procurement Administrative Review Board & Another; Wodex Technologies Ltd; Tana Solutions Limited [2023] KEHC 24930 confirmed the same point and added that the Board becomes functus officio once it has decided a request, meaning a second attempt at review is not available either.

What PPARB Cannot Hear

Section 167(4) excludes three categories from PPARB’s jurisdiction: the procuring entity’s choice of procurement method, termination of proceedings under section 62, and a contract already signed in accordance with section 135. A bidder whose grievance falls squarely within one of these carve-outs is not required to exhaust the PPARB route and may have a more direct path to judicial review, though this is a narrow exception rather than a general escape from the exhaustion requirement, and should not be relied on without careful analysis of exactly where the grievance falls. Standing itself is also policed at the PPARB stage: in Republic v Public Procurement Administrative Review Board; Sicpa SA; Accounting Officer, KEBS & Another [2024] KEHC 7157, the Board’s dismissal of a request for lack of demonstrated loss or damage under section 167(1) was upheld, confirming that a bidder must show an actual, not merely theoretical, risk of loss to even get through the door.

Round Two: Judicial Review of PPARB Itself

A party aggrieved by PPARB’s own decision is not without recourse. Section 175(1) allows an application for judicial review of a Board decision within fourteen days, failing which the Board’s decision becomes final and binding. The High Court must determine that application within forty-five days under section 175(3), and a further appeal lies to the Court of Appeal within seven days under section 175(4), which must itself decide within forty-five days. If either court misses its own deadline, section 175(5) provides that the Board’s decision stands. This creates a genuinely distinct, three-tier structure with its own compressed timelines at every stage, unlike ordinary judicial review’s six-month window for certiorari under the Law Reform Act.

Practical Timeline Discipline

The single most important practical step for a disappointed bidder is calendaring the fourteen-day clock the moment an award notification or a suspected breach becomes known, rather than treating it as a matter that can wait for a considered legal opinion. By the time many bidders seek advice, the window to lodge a PPARB request has already closed.