The fight for a multi-billion tender by Kenya Bureau of Standards (Kebs) for the inspection of goods destined for the Kenyan market has now moved to the Court of Appeal, marking an escalation of the feud.
Turkish firm TUV Austria Turk rushed to the appellate court in an urgent application, seeking orders to stop Kebs from awarding the lucrative tender to Quality Inspection Services Inc. Japan (QISJ), pending the determination of its appeal.
The applications for review of the tender, filed by TUV Austria Turk and TIC Quality Control, were dismissed on technicalities by High Court judge John Chigiti on August 4.
TUV Austria Turk’s case was dismissed because it was filed using its abbreviated name and not the firm’s full name – TUV Austria Turk Bel. Egitim Ve Gozetim Hiz. Ltd. STI.
But the firm argues in the appeal that QISJ, which was a party to the proceedings before the Public Procurement Review Board and whose objection was upheld by the court, did not raise the issue of the abbreviated name.
“The appellant posits that an abbreviated name does not take away the legal personality of a company registered, and as such, the court's interpretation and subsequent dismissal of the originating motion on this ground was not only unlawful but also prejudicial to the appellant,” said the firm through lawyer Sisule Musungu.
The company said its appeal is arguable and it should be granted an order stopping the tender until the case is determined.
Mr Musungu submitted that the court should issue temporary orders, stopping the process as Kebs was likely to award the tender, and the parties would progress to enter into contracts or agreements, rendering the appeal moot or an academic exercise.
According to Kebs’ audited report for the financial year 2023-2024, the total value of PVOC inspection services increased to Sh4.13 billion ($32 million), up from Sh3.74 billion ($29 million) in the 2019/2020 fiscal year—an indication of the size of business at stake.
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 were unfairly knocked out of the tender.
The review board, however, dismissed the applications and allowed Kebs to proceed with the process.
TUV Austria Turk said it identified a significant flaw in the procurement process, yet the review board failed to address the same.
The firm noted that the accounting officer at Kebs executed the notification of award or regret on April 24, 2025, while the professional opinion was dated April 25, 2025.
Mr Musungu said it was apparent that the accounting officer of the procuring entity exercised her mandate without the benefit of the professional opinion, contrary to Section 84 of the Public Procurement and Asset Disposal (PPAD) Act.
He said the substance of the proceedings before the Review Board revolved around the interpretation and presentation of audited financial accounts.
During the hearing before the board, the firm said it referred and availed technical guidance, in the form of standards developed by the International Auditing and Assurance Standards Board (IAASB).
But despite availing the appropriate technical guidance, and without any justification, the Review Board disregarded the technical guidance, and instead opted to impose a layman's interpretation on a technical document, Mr Musungu said.
“The appellant advances an arguable appeal before this court, which advances that the use of an abbreviated company name does not strip a party of its legal personality, is not fatal to the proceedings, and does not defeat a party's cause of action,” the Turkish firm said.
