The Kenya Bureau of Standards (Kebs) wants a case challenging a lucrative tender for inspection of goods before leaving the country of origin dismissed, arguing that the High Court lacks the power to determine the matter.
In response to a petition filed by Austrian firm TUV Austria Turk, Kebs said the matter cannot be determined because the case was filed without first seeking the court’s permission.
The tender for the Pre-Export Verification Conformity for the years 2025-2028 was blocked for the third time, after the TUV Austria Turk claimed that it was unfairly locked out of the tender.
The firm further faulted the Public Procurement Administrative Review Board for overlooking mandatory requirements, when it dismissed its application for review.
“The failure by the Applicant to seek and obtain leave of court prior to filing the originating motion dated June 26, 2025 render the proceedings herein incompetent, fatally defective and thereby a nullity for want of observance of the mandatory provisions in Order 53 Rule 1 of the Civil Procedure Rules,” Kebs said in response.
High Court Judge John Chigiti had suspended the tender, pending the determination of the case.
TUV Austria Turk was among 19 bidders who participated in the tender but the firm said the review board failed to address anomalies pointed out when it addressed the case.
Through lawyer Sisule Musungu, the firm pointed out that Kebs' accounting officer executed the notification on April 24, 2024, and the professional opinion was issued on April 25, 2025. He further said the proceedings before the board revolved around the interpretation of audited financial accounts.
According to Mr Musungu, the firm tabled before the review board a technical guidance, in the form of standards developed by the International Auditing and Assurance Standards Board (IAASB).
But despite providing the same, the board allegedly disregarded the document without justification and imposed a layman’s interpretation on a technical document.
“On account of this error, the board misinterpreted two critical positions of the financial statements, a position which significantly prejudices the Ex-parte applicant,” he said.
On June 16, the review board dismissed three petitions, including the one by TUV Austria Turk, challenging the tender process.
The firm added that the board took into account irrelevant considerations and in doing so, unlawfully imposed a mandatory requirement not expressed in the tender documents.
“As such, the resulting risk is that the decision (of the board) sanitises an unlawful process and it can be said it was calculated to defeat statutory safeguards,” the firm said in the petition.
“The review board improperly imposed that the audited and approved financial statements ought to have been prepared in accordance with the International Financial Reporting Standards, a financial framework not expressly stipulated in the tender documents,” said Mr Vincent Awich, technical manager at the firm.
