“Legality review may require a court to examine aspects of the substance of a decision. The critical question is not whether the court examines substance, but why it does so.” –Murgor, Joel Ngugi & Munyao, JJA, Okoth & Kiplagat Advocates v Public Procurement Administrative Review Board & 3 Others, Civil Appeal No. E401 of 2026 [2026] KECA (KLR), Court of Appeal at Nairobi, 26th June 2026.
Background
The National Treasury issued a restricted tender in January 2026 for local counsel to represent Kenya in LCIA arbitration proceedings brought by Jamhuri Holdings Limited. Two contenders answered the call: Okoth & Kiplagat Advocates (the Appellant) and G&A Advocates LLP (the 4th Respondent).
When the dust of evaluation settled, G&A Advocates LLP had swept both arenas scoring a commanding 98% technically against the Appellant’s 76% and tabling the lower bid of KShs. 358 million against KShs. 380 million. The fault line that cracked into litigation was deceptively narrow: Criterion 1(b) “Specific Experience of the Firm.”
To satisfy it, G&A Advocates LLP partly relied on international arbitration experience its partner, Mr. Ken Melly, had amassed while practising at Iseme, Kamau & Maema Advocates. The Appellant contended that the Review Board had quietly rewritten the tender by treating Mr. Melly’s individual advocate history as institutional firm experience. That challenge fell before the Review Board and again before the High Court. The Court of Appeal, while dismissing the appeal, seized the occasion to fashion landmark procurement jurisprudence of enduring consequence.
Key Jurisprudential Holdings
1. Procurement Judicial Review as Sui Generis Constitutional Review
The Court held that judicial review under section 175(1) of the Public Procurement and Asset Disposal Act is a sui generis species of constitutional judicial review wholly distinct from ordinary Order 53 review, unconfined by traditional common-law parameters, and equally removed from a full merits appeal. Its underpinning traces to Article 227 of the Constitution, which elevated procurement from mere statutory administration to constitutional imperative.
The Court’s function under section 175 is to ask the one constitutional question that matters: has the procurement framework been honoured? This definitive characterisation offered for the first time with this degree of jurisprudential precision by the Court of Appeal reshapes the theoretical architecture within which all future procurement litigation will be argued and decided.
2. Legality May Require Examination of Substance
Here lies the most intellectually arresting principle of the judgment. The dispositive question is not whether the court examines the substance of a decision, but why it does so. If directed at whether the decision-maker observed constitutional and statutory limits, the inquiry remains one of legality.
The moment that gaze shifts to whether the decision-maker was simply right, it crosses the Rubicon into an impermissible merits appeal. The High Court had erred by treating any substantive engagement as ipso facto impermissible effectively raising a shield where none was warranted.
The Court of Appeal corrected that error, though the correction yielded no different outcome on the facts. The principle now stands as an enduring corrective in Kenya’s public law landscape, legality review may require a court to look substance in the eye, what it may never do is blink into the role of a primary decision-maker.
3. Interpretation versus Alteration: Where the Illegality Threshold Lies
The Court turned to the heart of the matter: had the Review Board interpreted the Tender Document or rewritten it? Illegality arises only where an interpretation is “so disconnected from the language, purpose or structure of the Tender Document that it effectively amounts to creation of a new criterion.” The Tender Document never defined “Specific Experience of the Firm” and nowhere confined it to mandates conducted under the firm’s current name or structure.
The Review Board’s reasoning, that professional expertise is an attribute of the advocate and travels with them across firms, was rationally available and legally permissible. The lesson for procuring entities: if you intend to exclude lateral-hire attribution, say so expressly. Silence invites interpretation, ambiguity invites accommodation, only precision compels compliance.
The Bottom Line
With this judgment, the Court of Appeal has gifted Kenya’s procurement bar a principled and durable map for navigating the boundary between supervisory review and merits substitution. The sui generis constitutional framing, the legality-versus-correctness distinction, and the interpretation-versus-alteration threshold collectively give courts and practitioners a framework of enduring utility. The practical imperatives are unambiguous define experience criteria with surgical precision and frame every challenge as a question of fidelity to the procurement framework, never as a veiled plea for a better evaluation score.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact Litigation Department at Litigation@wamaeallen.com
About the author
Janeirene specializes in real estate and securitization and banking and finance. She is a promising transactional advocate who has experience in real estate and securities law, transactional law and advisory and has handled complex transactions and advisories.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
