A Swiss firm has for the fourth time lost its legal bid to overturn the revocation of its Sh278.5 million tender that was meant to help the petroleum sector regulator combat fuel adulteration.
The company, through its local subsidiary SGS Kenya Limited, has been challenging the decision by Energy and Petroleum Regulatory Authority (EPRA) to cancel the tender since 2017.
SGS had been awarded the contract in June 2017 to start marking and monitoring petroleum products to tame adulteration. But EPRA cancelled the tender, modified the terms of reference and re-advertised it.
The firm has suffered a setback in its long quest to overturn the decision, the latest coming from its petition at the Court of Appeal.
The court dismissed its petition on January 10, saying it lacked merit.
“The petitioner shall bear the costs of the 1st respondent (EPRA) in this court, in the Court of Appeal and the High Court, as well as at the tribunal,” ordered the court.
This will weigh heavily on SGS, which had hoped to either be awarded the contract or be compensated for having won the initial tender.
SGS first filed a request for review before the Public Procurement Administrative Review Board but lost.
This led it to High Court where it lost before moving to the Court of Appeal where it has now lost twice.
The Court of Appeal had upheld the High Court’s ruling but SGS made a further petition, seeking to have the matter certified as one of general public importance.
It wanted Court of Appeal to rule whether tribunals are bound by decisions made on past similar issues in making present decisions.
SGS wanted the court to declare that the doctrine of precedent was not followed and therefore led to “an unfair and un-transparent decision-making process.” However, this was thrown out.
“We would agree with the 1st respondent (EPRA), that administrative decision-makers should have significant flexibility, in responding to changes that affect the subject-matter before them,” ruled the apex court.
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