A three-judge bench has declined to set aside the High Court’s decision to order for fresh hearing of a Sh8.7 billion dispute pitting Rubis Energy PLC against Galana Oil Kenya Ltd over a fuel supply contract to Kenya Power.
The ruling by the bench of the appellate court marks the end of a vigorous court battle between the French multinational company and the Kenyan fuel dealer over the tender.
The bench comprising justices Hellen Omondi, Imaana Laibuta, and Abida Ali-Aroni struck out an appeal filed by Galana against High Court’s order that directed the procurement tribunal to hear the dispute afresh.
The judges found that the appeal had been overtaken by events as the tribunal had already complied with the High Court’s judgment and a re-hearing was conducted. The judges said the appeal was incompetent.
Rubis, a French oil marketer, was the successful bidder for the lucrative tender for supplying 53 million litres of fuel and was to be awarded the contract in December last after defeating four other bidders. They were East African Gasoil Limited, Oryx Energies Kenya Ltd, Nyumba Itu Energy, and Hass Petroleum.
However, the Public Procurement Administrative Review Board (PPARB) nullified the award following a finding that Galana was unfairly locked out of Kenya Power’s e-procurement system and was unable to place its bid.
Rubis was aggrieved by the Board’s decision and moved the High Court for Judicial Review seeking orders to quash the board’s ruling. Also sought was an order compelling Kenya Power to issue Rubis with the contract.
Conflicted of interest
But High Court Judge Jairs Ngaah in a ruling dated February 3, 2023, instead quashed the board’s decision and ordered it to conduct fresh proceedings with the exclusion of the board’s chairperson, Faith Waigwa.
This was because Ms Waigwa was conflicted as she was the managing partner in a firm of advocates whose clients include Kenya Power & Lighting Company (KPLC).
Galana reacted and moved to the court of appeal arguing that there was no basis for quashing the decision of the Board based on illegality and procedural impropriety, as there was no evidence to support that conclusion.
Ruling on the appeal, the three-judge bench noted that the fresh hearing had already been conducted and hence the appeal was moot.
After the second hearing, the board upheld its decision to nullify the tender award.
The tribunal found that Kenya Power conducted the procurement of the tender using a system that was unfair to Galana.
The bidder was locked out following a technical hitch at Kenya Power’s online system and it was unable to submit its tender.
The board found that Kenya Power used an electronic procurement system that locked out Galana a few minutes before the deadline for submission of the tender documents.
“A procuring entity is under an obligation to ensure that the place or site allocated for submission of tenders by tenderers is open and accessible from the date of advertisement of a tender to the date and time scheduled as the tender submission deadline,” said the board. BY DAILY NATION