Public Procurement in Kenya: Tendering, Compliance and Dispute Resolution

Public procurement in Kenya is regulated by the Public Procurement and Asset Disposal Act, 2015 (Act No. 33 of 2015), read with the Public Procurement and Asset Disposal Regulations, 2020. The Act gives a bidder who loses, or who is wrongly excluded, a fast route to challenge the decision, but the deadlines are short and the courts treat them strictly. This guide explains the review route, the High Court and Court of Appeal stages that follow, and the grounds on which a supplier can be debarred.

Where Public Procurement in Kenya Is Governed

The Act sets the rules for tendering, evaluation and award, and it creates the Public Procurement Administrative Review Board (section 27) as the first forum for disputes. The 2020 Regulations were still cited as the operative regulations in a Gazette notice of 13 November 2025 (Legal Notice 180 of 2025), which debarred a supplier under regulation 22(5)(k). Because the Act has been amended several times, always check the current consolidated text before relying on a section number.

Preferences and Reservations

Section 155 of the Act requires all procuring entities to comply with it. Preferential procurement applies to manufactured articles, materials or supplies wholly mined and produced in Kenya, subject to the availability and realisation of applicable standards. Preference is also given to articles partially mined or produced in Kenya, or assembled in Kenya, and to firms where Kenyans are shareholders. If you are a foreign-owned bidder, check the tender documents for how these rules are applied before you spend money on a bid.

Challenging a Tender Decision: Administrative Review

Section 167(1) allows a candidate or tenderer who claims to have suffered, or to risk suffering, loss or damage because the procuring entity breached a duty under the Act or the Regulations to seek administrative review. The request must be made within fourteen days of notification of the award, or of the date the alleged breach occurred, at any stage of the procurement process. Three further points matter in practice:

• The request must be accompanied by the refundable deposit prescribed in the regulations (section 167(2)). The Secretariat must reject a request where the appeal fees were not paid within the prescribed time (section 169(1)).
• The review is heard and determined in an open forum unless the matter is likely to compromise national security or the review procedure (section 167(3)).
• Some matters cannot be reviewed. They include the choice of procurement method, a termination of proceedings under section 63, and a contract signed in accordance with section 135 (section 167(4)).

When the Board receives a request, the Secretary notifies the accounting officer of the pending review and the procurement proceedings are suspended (section 168). Section 171(1) requires the Board to complete its review within twenty-one days of receiving the request.

What the Review Board Can Order

Under section 173, the Review Board may annul anything the accounting officer has done in the procurement proceedings, including the whole procurement; give directions on what must be done or redone; substitute its own decision for the accounting officer’s; order costs between the parties; and order termination of the procurement and the start of a new one. Section 174 says the review right is additional to any other legal remedy. The Board may also dismiss a request with costs where it is frivolous or vexatious or made only to delay the procurement. In that case the applicant forfeits its deposit and can be debarred (section 172).

Going to the High Court and the Court of Appeal

Section 175(1) lets a person aggrieved by a Review Board decision seek judicial review in the High Court within fourteen days of the decision. If no application is made in time, the Board’s decision is final and binding on both parties. The High Court must determine the application within forty-five days (section 175(3)). A further appeal lies to the Court of Appeal within seven days of the High Court’s decision, and the Court of Appeal must decide within forty-five days, with its decision final (section 175(4)). If either court misses its deadline, the Review Board’s decision becomes final and binding on all parties (section 175(5)). A party that disobeys a decision of the Board or either court is in breach of the Act, and any action taken contrary to the decision is null and void (section 175(6)).

Those timelines are short enough that a suspect award should be assessed on the day of notification. The three deadlines to diarise are fourteen days to the Board, fourteen days to the High Court and seven days to the Court of Appeal.

Debarment

Section 41(1) lists grounds on which a person is debarred from procurement and asset disposal proceedings. They include committing an offence under the Act, breaching a procurement contract with a public entity (including poor performance), giving false information about qualifications, refusing to enter a written contract as required by section 135, defaulting on tax obligations, corrupt or fraudulent practices, and being found by the Review Board to have filed a frivolous or vexatious request. A contractor who is debarred loses access to the whole public market, so contract performance and tax compliance are part of procurement risk, not separate issues.

Practical Steps for Bidders

Read the tender document for evaluation criteria and mandatory requirements before you price. Keep the notification letter and note its date. If you intend to challenge, obtain the evaluation report and the grounds for your rejection, and calculate the filing deadline from the date of notification. Keep the review fee ready, since a late or unpaid fee is a ground for rejecting the request.