The high court in Nairobi has declined to review a decision to cancel a tender for the supply of fresh bone meat to soldiers at Moi barracks, Eldoret.
Justice Rosyln Aburili ruled that she saw no reason to rescind her decision on the impugned tender which she termed “illegal.”
Recourse in court
An aggrieved bidder sought recourse in the court challenging a boardroom decision that appears to have run roughshod on provisions of law regarding tender processes.
Justice Roslyn Aburili dismissed claims that the order may spark a crisis at the Eldoret recruits base camp saying the Ministry of Defence would have been in court but have since “chosen to watch by the sidelines as the bidders squabble in court” meaning they have been enjoying a steady supply of meat, the court case notwithstanding.
The judge was of the opinion that the application for review only served to delay the substantive hearing of the main case, hence “no crisis” at the barracks as alleged.
Sanitise violation of law
While revisiting her ealier ruling the judge said, “the court had deemed it not to sanitise a violation of the law…”
She said although the party which sought the review had reported having invested in purchasing and fattening of animals, the application lacked merit.
“I note that the court clearly captured the interested party’s concerns…however, the contract was illegal and the court cannot be called upon to state otherwise by sitting on its own judgement,” justice Aburili said.
She said the applicant should move to the court of appeal if still dissatisfied with her ruling.
The judge wondered where the procuring entity,MoD, was getting its supply during the transition period after the tender expired on December 7 2016 and December 28 2016 when it served the notification of award of tender to the applicant.
No crisis at barracks
She said MoD has been sitting silently as there is no crisis at the barracks over the meat supply.
“There is no new evidence or error apparent of sufficient cause to warrant a review as sought “the judge said reaffirming that she had already ruled that the “tender was an illegal contractual act.”
The judge said MoD should continue getting the meat supplied from wherever it has been getting it after the tender expired.
“The previous contract lapsed… (MoD) is not in a helpless state,” the judge said.
In the case, Adan Osman Godana of Eldoret Standard butchery had sued the Public Procurement Administrative Review Board and the Ministry of Defence accusing them of stooping in procurement impropriety, and later Joseph Chesire Chemuna and Phillip Kosgei trading as Avenue Butchery who won the tender joined the row as an interested party.
Osman had challenged the entire process of tender No MOD423(01103)2016/2017 concerning the supply of fresh meat to the Eldoret based units.
He urged court to rule that a decision made on September 8 2016 to award the tender to Avenue Butchery was an illegality.
Open admission of violation of law
In the earlier ruling that cancelled the tender, the judge said a perusal of the briefs that spilled in court revealed “impunity on the part of the procuring entity” and “an open admission of violation of law .”
“The board itself having found earlier that the procuring entity failed to evaluate the tenders in accordance with criteria set out in the tender documents held it in breach of the provisions of the law,”the judge said.