The High Court has dismissed two petitions that sought to block the Kenya Bureau of Standards (Kebs) from awarding a multi-billion-shilling tender for the pre-inspection of goods destined for the Kenyan market.
Justice John Chigiti dismissed the two cases, which were filed separately, on technicalities, clearing the way for Kebs to proceed with the Pre-Export Verification Conformity (PVOC) tender for the year 2025-28.
Turkish firm, TUV Austria Turk, and TIC Quality Control filed separate judicial review applications, challenging the dismissal of their cases by the Public Procurement Administrative Review Board.
In the first petition, Justice Chigiti upheld a preliminary objection filed by the winning bidder, Quality Inspection Services Inc. Japan, stating that the court lacked the jurisdiction to hear and determine the case filed by TIC Quality Control. The court also argued that the application for a review was also filed out of time.
The judge stated that section 175(1) of the Public Procurement and Asset Disposal Act 2015, provides that an application for judicial review of a decision of the Review Board must be filed within 14 days from the date of the Review Board’s decision.
“In the instant suit, the applicant (TIC Quality Control) did not initiate the judicial review proceedings in time as rightly pointed out in the notice of preliminary objection, and I so hold,” said the judge.
In the second petition, the judge dismissed the case, saying it was filed by a non-existent party.
Court proceedings showed that the Turkish firm challenged the process using the name TUV Austria Turk as opposed to its corporate name—TUV Austria Turk Bel. Egitim Ve Gozetim Hiz. Ltd STI.
The firm had defended the use of the short form of the name, stating that the longer version was arduous.
TUV Austria Turk further argued that the objection was a red herring and an attempt to distract the court from determining the substantive dispute.
The judge rejected the same, saying the arguments made by the company cannot form the basis of conferring it with locus to file the case.
“In the circumstances, this court is satisfied that the applicant is not a legal entity that is capable of suing. It lacks the locus standi or the legal capacity to sue. This takes away this court’s jurisdiction, and I so hold,” said the judge.
Kebs invited bids in January for Pre-Export Verification Conformity (PVOC) for the year 2025-2028. A total of 19 firms submitted their bids.
TUV Austria Turk, TIC Quality Control, and Bay Area Compliance Laboratories Corp challenged the process at the review board, arguing that they had been unfairly knocked out.
The review board, however, dismissed the applications and allowed Kebs to proceed with the process.
TUV Austria Turk stated that, despite identifying the anomaly under the procurement law, the review board failed to address the matter, thereby contravening the law.
“As such, the resulting risk is that the decision (of the board) sanitises and unlawful process, and it can be said it was calculated at defeating statutory safeguards,” the firm said in the petition.
Through lawyer Sisule Musungu, the firm pointed out that Kebs’ accounting officer executed the notification on April 24, 2024, and the professional opinion was issued on April 25, 2025.
He further said the proceedings before the board revolved around the interpretation of audited financial accounts.
According to Mr Musungu, the firm tabled before the review board a technical guidance, in the form of standards developed by the International Auditing and Assurance Standards Board (IAASB).
But despite providing the same, the board allegedly disregarded the document without justification and imposed a layman’s interpretation on a technical document.
“On account of this error, the board misinterpreted two critical positions of the financial statements, a position which significantly prejudices the Ex-parte applicant,” he said.
The firm added that the board took into account irrelevant considerations and, in doing so, unlawfully imposed a mandatory requirement not expressed in the tender documents.
