In the Al Ghurair tender case, Civil Appeal No. 224 of 2017, the Court of Appeal finalized jurisprudential debates on a number of legal principles. Particularly, I found the following findings by the learned judges insightful:
A. Admissibility of newspaper reports
1. The first issue addressed by the court was the question of admissibility and probative value of newspaper cuttings as items of evidence. NASA had relied on newspaper reports to prove that Al Ghurair had met president Uhuru before being awarded the tender by IEBC. NASA argued that the document ought to have been given weight as there was nothing else to prove meetings between the president and delegations. The High Court had dismissed the evidence by placing reliance on William Muriithi Nyuiri Wahome & 2 others -v- Attorney General  eKLR which held: “…. I must first state that it is now well settled that newspaper cuttings are inadmissible…”’
2. On its part, the Court of Appeal slightly differed with the High Court. It found that under section 86 (1) (b) of the Evidence Act, newspapers are prima facie admissible as they are one of the documents whose genuineness are presumed by the court.
3. However, the Court of Appeal found that a statement of fact contained in a newspaper is merely hearsay therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.
4. The position, therefore, in my understanding of the reasoning of the court is that newspapers are of low probative value and they cannot stand on their own to prove or disprove the existence of a fact in issue. Corroboration is required. The court concluded:
We hold that without corroborative evidence, the probative value and weight of newspaper cuttings as items of evidence to prove a fact in issue is low.
B. Standard of proof of bias
5. On the question of bias, NASA argued that the previous dealing between IEBC and Al Ghurair some of which led to nullification of contracts signed between them was suspect. NASA contended that the conduct of IEBC to always award tenders to the firm bespoke bias. On this point, the High Court found that to prove bias, the facts and evidence must “unmistakably point to likelihood of bias or actual bias”. NASA cross-appealed against this line of thought.
6. Faced with the same argument, the Court of Appeal introduced two forms of bias; actual and apprehended. It defined them as follows:
A claim of actual bias requires proof that the decision-maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand
A claim of apprehended bias requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind. (Apprehended bias has been variously referred to as “apparent”, “imputed”, “suspected” or “presumptive” bias
7. On the exact question of standard of proof of bias, the Court of Appeal was categorical that it is on a balance of probability. The Court faulted the High Court for introducing the strange standard of ‘unmistakable likelihood of bias’.
8. Make no mistake. The Court of Appeal did not agree with NASA’s submission that IEBC was biased towards Al Ghurair only because IEBC has been persistently awarding tenders to the company. The Court held:
When a person consistently wins a tender award, an inference could also be drawn that other bidders consistently did not meet the tender criteria.
C. Justiciability of Article 10
9. Simplified; a matter or a provision of law is said to be justiciable when it can be resolved by the courts or an action can be founded on it. Justiciability is, therefore, the ability to be enforced by a court of law.
10. Article 10 of the Constitution talks about principles of governance. The relevant principle in this case was public participation. The question in court was whether or not the principles listed in Article 10 are mere aspirations and are not immediately enforceable. This was SC Ahmednassir’s submission.
11. In correctly dismissing the argument that the principles of governance espoused in Article 10 are progressive in realization, the Court of Appeal relied on several authorities from the Supreme Court and the High Court to find as follows, and any lover of law should be impressed by this:
For avoidance of doubt, we find and hold that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles. Kenyans did not promulgate the 2010 Constitution in order to have devolution, good governance, democracy, rule of law and participation of the people to be realized in a progressive manner in some time in the future; it could never have been the intention of Kenyans to have good governance, transparency and accountability to be realized and enforceable gradually.
D. Common law judicial review and Constitutional review
12. IEBC and other parties that supported the appeal argued that the High Court was wrong to rely on Article 22 and treat the application before it as a constitutional reference. According to them, the case before the High Court was a common law judicial review and that the constitutional provisions and doctrines ought not to have been ‘imported’ to guide the court in the determinating of the dispute. Particularly, Prof. Githu Muigai submitted that the High Court converted a judicial review application into a constitutional petition.
13. The Court of Appeal dismissed this argument. It relied on the Supreme Court’s holding in Communication Commission of Kenya -v- Royal Media Services & 5 Others Petition No.14 of 2014 which recognized that the source of power of any judicial review is now found in the Constitution.
14. The Court of Appeal, again impressed me when it held as follows:
The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law Order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both. [Emphasis added]
E. Failure to produce decision to be quashed
15. Order 53 (7) (1) of the Civil Procedure Rules, 2010 requires that the order sought to be quashed in a judicial review application must be produced before the court. The basis for this requirement is that a court of law cannot quash a non-existed order. At the High Court, NASA did not produce the decision of IEBC to award the tender. Of course, they could not have readily accessed it, especially since IEBC has become so secretive a voter has to go to court to compel it to publish the voter register.
16. Back to the appeal. The Appellant argued that failure by NASA to produce the decision to be quashed was fatal as compliance with Order 53 (7) (1) of the Civil Procedure Rules, 2010 is a pre-condition to seeking an order of certiorari. Both the High Court and the Court of Appeal said it was not.
17. The High Court found:
“Whereas in this case the decision sought to be quashed was not exhibited, since it is not in doubt that the decision in fact exists, to dismiss the Application simply on the technical ground that the decision was not exhibited would amount to elevating procedural rules to a fetish.”
18. The Court of Appeal did not interfere with the opinion of the High Court. It held:
In our view, depending on the peculiar circumstances of each case where it is clear, uncontested and definite that a decision has been made and the nature of the decision is not disputed, a court can either take judicial notice of the decision or the parties can by consent record the nature of the decision. In such cases, the need to attach or produce the decision to be quashed can be waived
19. Again, make no mistake. This does not mean that it is in order not to produce the decision to be quashed. In my view, the court held that the decision need not be produced in cases where there is no dispute on; one, whether the decision was made and two, the nature of the decision.
F. Public interest
20. The Court of Appeal did not directly answer the question on whether or not the tender should not be cancelled on the basis of public interest. However, the court approached the question from a more convincing angle.
21. The main point of concern under this issue was the constitutional crisis likely to be created when elections are not held in August 2017. Prof. Githu argued that there was no time left for IEBC to carry out another procurement process in time for the August 8 polls and, as such, there will be no parliament in place after August 8. The High Court was not convinced. It found that time was still in abundance for IEBC.
22. While faulting the High Court, the Court of Appeal, in a diplomatic language, criticized the High Court for not knowing the law with which they work day in and day out. The Court of Appeal considered the Public Procurement and Disposal Regulations of 2006, which statute provides for timelines for procurement process. From advertisement, to preparation of the tenders, to evaluation of the tenders and invitation of public views, the entire process would have taken over 100 days. The High Court did not address itself to the Regulations.
23. The Court of Appeal also found that the decision by IEBC to directly award the impugned tender to Al Ghurair was not an artificial urgency engineered by IEBC but was triggered by time constraint caused by the litigations the electoral body was ‘forced’ into.
G. Splitting of tender
24. This was, in my view, the crux of the appeal. From the reading of the High Court orders, the superior court split the tender by separating printing of presidential ballot papers from the rest of the contract. The Appellant (and its friends, if I may use that term) submitted that this was not right. They argued that the contract was one single contract for printing of election materials and as such it could not be split into several (or six) pieces for the six elections.
25. The court took the view that in determining the question of severability of a contract, reference is made to the terms of the contract and nothing else. The Court, while holding that the tender could be split, relied on several clauses of the contract IEBC signed with Al Ghurair.
Clause 8.2. Severability:
If any provision of this agreement shall be held by any Court of competent jurisdiction or arbitral tribunal to be illegal, void or unenforceable, such provision shall be of no force and effect, but the enforceability of all other provisions of this agreement shall be unimpaired.
Clause 7.15.2 (a):
The Commission (IEBC) by written notice sent to the Contractor, may terminate the contract in whole or in part, at any time for its convenience……
In the event the procuring entity terminates the contract in whole or in part, it may procure upon such terms and in such manner as it deems appropriate goods similar to those undelivered and the tenderer shall be liable to the procuring entity for any excess costs for such similar goods.”
26. The ratio decidendi that led to the splitting of the tender can be found at paragraph 136 of the judgment. It reads;
Whether or not a contract is severable depends on the terms and conditions of the contract. Where a single contract is signed by the parties, there is a presumption of unity of contract – a presumption that the contract is indivisible and is to be performed as one. Severability turns on the intent of the parties and a court may examine extrinsic evidence-evidence outside the writing-to determine whether the parties actually intended an illegal term to be severable. If the contract makes provision for severability then it is severable; however, if the contract has no provision for severability, a court will determine if the contract is indivisible or severable. Such determination by the court will take into account amongst other things the nature of goods, services or works to be performed.
H. Public participation
27. The Court of Appeal agreed with the findings of the High Court that public participation is a requirement in all procurement by a public entity. This, however, is subject to exceptions provided by law. One such exception, the court found, is lawful direct award of tender.
28. The court stated:
We however note that the High Court…did not take into account that there are exceptions to the general principle in which public participation in procurement process is not mandatory
I. Reliance on authorities from the High Court
29. The other thing I found interesting about the judgment is that the Court of Appeal relied on a number of High Court decisions. Since most cases die at the High Court, it is always not easy to get authorities from the Court of Appeal on all points/issues of law. In fact, counsels always shy away from relying on High Court decisions while submitting at the Court of Appeal because they have to indicate that they are just persuasive.
30. In the judgment, the Court of Appeal appreciated the wisdom from the High Court. It cited around 10 decisions of the lower court and essentially confirmed that the only difference between a lion and a leopard is the intimidating roar, otherwise they both kill.