{"id":726,"date":"2026-02-23T11:36:09","date_gmt":"2026-02-23T11:36:09","guid":{"rendered":"https:\/\/gkmuturi.ke\/law\/?p=726"},"modified":"2026-02-25T14:48:43","modified_gmt":"2026-02-25T14:48:43","slug":"legal-alert-high-court-clarifies-procurement-timelines-limits-of-procurement-boards-jurisdiction-and-affirms-what-amounts-to-a-minor-deviation-in-procurement-law","status":"publish","type":"post","link":"https:\/\/gkmuturi.ke\/law\/2026\/02\/23\/legal-alert-high-court-clarifies-procurement-timelines-limits-of-procurement-boards-jurisdiction-and-affirms-what-amounts-to-a-minor-deviation-in-procurement-law\/","title":{"rendered":"Legal Alert : High court clarifies procurement timelines, limits of procurement board\u2019s jurisdiction, and affirms what amounts to a minor deviation in procurement law."},"content":{"rendered":"\n
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Republic v Public Procurement Administrative Review Board; County Government of Nyeri & another (Interested Parties); Utmost Insurance Brokers Limited & another (Ex parte) [2026] KEHC 1620 (KLR)<\/a><\/p>\n\n\n\n

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Our firm has successfully overturned the decision of the Public Procurement Administrative Review Board (PPARB Ruling in Review No. 111 of 2025)<\/em>, which had nullified the award of the Tender for procurement of comprehensive insurance cover for executives and staff.<\/p>\n\n\n\n

In a groundbreaking judgment delivered by Lady Justice R. E. Aburili, the High Court at Milimani quashed the decision of the Board and upheld the award of the Tender to our client. The Court\u2019s key findings were as follows:<\/p>\n\n\n\n

Interpretation of Section 167(a) of the PPAD Act on the timelines for review before the Board<\/strong><\/p>\n\n\n\n

The Court held that Section 167(a) of the Public Procurement and Asset Disposal Act permits a request for review to be filed within fourteen (14) days of the occurrence of the alleged breach, or within fourteen (14) days of the notification of award.<\/p>\n\n\n\n

The notification of award is only one of the final stages of the procurement process, following evaluation. In this case, the alleged breach occurred at the tender opening stage, and the applicant before the Board was fully aware of it at that time. The Court held that an aggrieved party cannot wait until notification of award to file a request for review application where the grounds of the alleged error were known immediately after tender opening.<\/p>\n\n\n\n

Midway challenges in procurement<\/strong><\/p>\n\n\n\n

The Court affirmed that the law permits challenges at any stage of the procurement<\/p>\n\n\n\n

process. The PPARB has jurisdiction to entertain a request for review at any stage of the tendering process, provided that such request is filed within the statutory timelines either within 14 days from the date of notification of award or occurence of the alleged breach.<\/p>\n\n\n\n

Lack of jurisdiction owing to late filing<\/strong><\/p>\n\n\n\n

Having found that the alleged breach occurred at tender opening and that the applicant had knowledge of it at that stage, the Court held that the request for review was filed outside the fourteen-day statutory period. Consequently, the PPARB lacked jurisdiction to hear and determine the review application.<\/strong><\/p>\n\n\n\n

Minor deviations and the principle of substance over form<\/strong><\/p>\n\n\n\n

The Court provided important guidance on what constitutes a minor deviation that does not affect the materiality of a tender or amount to a departure from the Characteristics, Terms and Conditions, and other requirements set out in the Tender document.<\/p>\n\n\n\n

In line with Article 227 of the Constitution and Section 79 of the PPAD Act, the Court held that a procuring entity may condone deficiencies that do not affect the substance of a tender. The Court reiterated that a bona fide mistake should not, in and of itself, disqualify a bidder, and that substance must prevail over form.<\/p>\n\n\n\n

The Court further held that correction of such minor deficiencies forms part of the fiduciary duty of the procuring entity. Errors such as mislabeling or misreading a security bank guarantee as an insurance guarantee during tender opening were found to be minor deficiencies, capable of correction through the proper process.<\/p>\n\n\n\n

The Court emphasized that procurement should not be treated as a “game of traps”, where a simple reading error invalidates an otherwise responsive bid.<\/p>\n\n\n\n

This landmark decision not only vindicated our client\u2019s position but also significantly advanced procurement jurisprudence by clarifying statutory timelines for review, delineating the limits of the Board\u2019s jurisdiction, and reinforcing the principle that substance must prevail over technical technicalities.<\/p>\n\n\n\n

The matter was successfully prosecuted by our dedicated legal team comprising Gideon K. Muturi, Florence Mugi, and Anita Nyaga, ably supported by our law trainee, Cynthia Cherono. Through meticulous preparation, strategic advocacy, and unwavering commitment, the team worked tirelessly to overturn the impugned decision and contribute meaningfully to the continued development of sound and progressive procurement law.<\/p>\n\n\n\n

Article by G.K Muturi.<\/em><\/p>\n\n\n\n

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Find a downloadable version of the Alert below.<\/p>\n\n\n\n

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