The High Court has declared unconstitutional key provisions of the Public Procurement and Asset Disposal Act that required bidders to pay a mandatory fee deposit before filing procurement disputes, ruling that the requirement violates access to justice.
In its judgment, the court found that the financial precondition imposed on applicants seeking review before the Public Procurement Administrative Review Board creates an unjustified barrier, particularly for small and medium enterprises. Judges held that constitutional rights cannot be conditioned on the ability to pay fees that are not proportionate.
The court noted that procurement disputes are governed by strict statutory timelines, and requiring upfront payments within such limited periods effectively locks out aggrieved bidders from challenging tender decisions. It ruled that this undermines the right to fair administrative action and weakens oversight of public procurement.
State agencies had defended the provision, arguing that the fee requirement was necessary to deter frivolous claims and streamline dispute resolution. However, the court found that less restrictive measures could be used to filter unmeritorious cases without infringing on constitutional rights.
The judges further held that the impugned provisions contradict Article 227 of the Constitution, which requires procurement systems to be fair, equitable, transparent, competitive and cost-effective.
The case was filed by bidders who argued that the mandatory deposit discouraged legitimate complaints and shielded potentially irregular procurement processes from scrutiny.
In its orders, the court issued an injunction restraining the government and relevant agencies from enforcing the unconstitutional provisions pending legislative review.
The ruling effectively suspends the mandatory fee requirement, allowing aggrieved bidders to access dispute resolution mechanisms without upfront financial constraints.
Legal experts say the decision is likely to increase the number of procurement disputes filed, while strengthening accountability and transparency in public contracting.
The judgment also places pressure on Parliament to amend the law to align procurement dispute procedures with constitutional standards.
The decision marks a significant shift in procurement regulation, reinforcing judicial oversight over administrative bodies involved in public contracting.
The ruling is expected to have far-reaching implications for both government agencies and private contractors participating in Kenya’s procurement system.
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FELIX MAKONA
FACT FINDER AND DATA DRIVEN JOURNALIST. DATA MINING AT IT'S BEST. GET FACTS RANGING FROM MATTERS DISABILITY AND INCLUSION, POLITICS, ECONOMY, SPORTS AND GENERAL NEWS AROUND THE WORLD