The Court of Appeal has given the Independent Electoral and Boundaries Commission (IEBC) a go ahead to ratify tender awards and sign contracts for the delivery of ballots and polling technology.
The court threw out the petition by bidders who had sought a review of tenders issued by the Commission to supply ballot papers and Kenya Integrated Elections Management System (Kiems) kits.
“Having held that we are bereft of jurisdiction, the only logical thing for us to do is down our tools,” the judges said in the March 4 judgement, ending what would have been a messy legal tussle for control of multi billion-shilling tenders at the commission.
The contract for the two tenders was given to foreign corporations by the IEBC, but Risk Africa Innovatis Ltd challenged the award in court. The contract for the Sh3 billion ballot papers was awarded to the Greek Firm Inform P Lykos.
The Sh4 billion Kiems tender was given to Smartmatic, a Dutch company, and covers the maintenance of software, hardware, and voting kit accessories.
The award of the Kiems tender was originally disputed by Risk Africa through an appeal to the Public Procurement Administrative Review Board (PPARB).
The tender was declared null and void by PPARB, who ordered IEBC to re-advertise it within 30 days of the ruling.
Despite the fact that it was not a part of the board’s procedures, Smartmatic filed a judicial review application in the High Court, claiming that the board had overstepped its bounds and made an unreasonable and illegitimate conclusion.
PPARB’s decision was quashed by the High Court on October 26, 2021, because it did not grasp the relevant clauses of the Public Procurement and Asset Disposal Act, which governs its decision-making powers.
The High Court specifically stated that PPARB misinterpreted Section 2 of the Act regarding who a candidate is and whether Risk Africa was qualified for such designation and capable of requesting a review before it.
The board had unjustly enlisted a party (Risk Africa) who was nothing more than a busy body in the proceedings, according to the High Court, and it had also assumed jurisdiction it did not have.