UNCONFIRMED ESTATES ARE NOT BEYOND REACH: HIGH COURT AFFIRMS EXECUTION AGAINST MOVABLE ASSETS

 

In a significant ruling, the High Court has reaffirmed that creditors are not barred from executing against the movable assets of an unconfirmed estate. The decision in Patricks Law Associates v Joyce Wangechi Ruga (Sued as the Co-Administrator of the Estate of Ruga Gituku) clarifies the extent to which estate property may be used to satisfy lawful debts before confirmation of grant.

The most significant aspect of the decision concerns execution against an unconfirmed estate. Rejecting the argument that execution would amount to unlawful intermeddling, the Court held that Section 86 of the Law of Succession Act requires the debts of a deceased person to be settled before distribution to beneficiaries. The Court emphasized that while Section 82(b)(ii) prohibits the sale of immovable property before confirmation of the grant, the restriction does not extend to movable assets. Consequently, a decree-holder may lawfully execute against movable property belonging to the estate even where the grant has not been confirmed.

In reaching this conclusion, the Court relied on Moi & another v Joshua Kipkemoi Mutai [2023] KEHC 1265 (KLR), which similarly permitted execution against movable estate assets, including motor vehicles and livestock, notwithstanding pending succession proceedings. The Court also observed that execution carried out pursuant to a court order under the Civil Procedure Act is an act authorized by law and therefore does not amount to intermeddling with the estate.

The Court ultimately authorized execution against the movable assets of the Estate of Ruga Gituku while staying execution against immovable assets pending confirmation of the grant.

 

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Bridget Inyanje

 

EMPLOYERS CANNOT USE ROLLING FIXED-TERM AND CASUAL CONTRACTS TO CIRCUMVENT LABOUR RIGHTS.

 

The Court of Appeal has once again reaffirmed a fundamental principle of Kenyan employment law: an employer cannot evade statutory employment obligations by repeatedly engaging employees under casual or rolling short-term contracts where the reality of the employment relationship demonstrates continuous service and work of a permanent nature.

In its recent decision in Kenya County Government Workers' Union v Embu County Government & another (Civil Appeal 178 of 2020) [2026] KECA 1481 (KLR) (24 July 2026) (Judgment) the Court held that prolonged engagement under casual or successive short-term contracts constitutes a deliberate circumvention of labour protections and infringes the constitutional right to fair labour practices under Article 41 of the Constitution.

The Court observed that the true character of an employment relationship is determined not by the label assigned by the employer, but by its substance. Consequently, employees who perform continuous work over an extended period cannot be denied statutory protections simply because their contracts describe them as "casual", "temporary", or "fixed-term" employees.

This position is firmly anchored in section 37 of the Employment Act, 2007, which was enacted to prevent employers from disguising permanent employment relationships as casual employment. Where an employee works continuously in circumstances contemplated by section 37, the law affords that employee the protections applicable to regular employment, irrespective of the contractual description adopted by the employer.

Equally significant is the Court's unequivocal condemnation of the practice of successive fixed-term contracts used to avoid statutory obligations. The Court stated:

"An employer cannot retain an employee under casual or rolling short-term arrangements for long periods as such conduct is a deliberate circumvention of labour protections; and it violates the right to fair labour practices under Article 41 of the Constitution."

This pronouncement builds upon the Court's earlier decision in Kenyatta University v Maina (Civil Appeal No. 261 of 2020) [2022] KECA 1201 (KLR), where it held that the repeated execution of three-month contracts was "a roundabout way of avoiding the provisions of the law on casual employment." The Court further agreed that prolonged and continuous service transformed what was described as temporary employment into employment that was, in substance, permanent and pensionable.

The decision is also consistent with Nanyuki Water & Sewerage Company Limited v Benson Mwiti Ntiritu & 4 Others [2018] KECA 196 (KLR), where the Court emphasized that the label attached to an employment contract is not decisive. Rather, courts must examine the reality of the employment relationship, including the continuity of service, the nature of the work, and the employer's operational requirements.

Collectively, these decisions establish an important principle in Kenyan employment jurisprudence: the substance of the employment relationship prevails over its form. Employers who retain employees on rolling fixed-term or casual arrangements for years, while assigning them work that is continuous and integral to the enterprise, risk judicial findings that the employees are entitled to the rights, benefits, and protections afforded to permanent employees under the Employment Act.

The Court of Appeal's recent pronouncements therefore serve as a timely reminder that employment contracts must reflect the genuine nature of the relationship. Reliance on repeated short-term contracts or casual designations as a mechanism to avoid statutory obligations is unlikely to withstand judicial scrutiny. Such practices not only contravene section 37 of the Employment Act but also offend the constitutional guarantee of fair labour practices under Article 41, exposing employers to significant legal and financial consequences.

As Kenyan employment law continues to evolve, employers should review their workforce structures and contractual arrangements to ensure compliance with both the Employment Act and the Constitution. The era in which contractual labels alone could determine employment status has firmly come to an end.

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Bridget Inyanje 

FROM BLUE TICKS TO BINDING OBLIGATIONS: WHATSAPP CHATS CAN CREATE BINDING CONTRACTS

 

The High Court of Kenya at Siaya recently made a determination that is hailed as a milestone step towards embracing the digital contracts as a country. In the said Appeal cited as Ochiel v Okoth [2026] KEHC 106 (KLR), the Appellant one Fredrick Ochiel, sought to overturn the Small Claims decision claiming that the WhatsApp messages which was presented before the trial court did not amount to a contract within the definition of a contract under the Laws of Contract. It was his argument that he did not execute any written contract with the Respondent, one Kennedy Okoth and therefore he had no legal liability.

Traditionally, under the Laws of governing contracts, contracts have been constrained to only two forms; Written and Oral contracts. The requirements for a legally enforceable written contract have been well articulated in our Kenya Law of Contract Act and for a written contract to be duly enforceable, the stringent rules have to be adhered to.

On the other hand, under the common law of contract, Oral contracts are often described as verbal, and they provide a flexible requirement for its enforceability. The most important requirement in an oral contract is that there should be a clear indication of an offer being made by one party which is then accepted by the other party at a consideration of value which may be in form of money being exchanged. While it is hard to prove an oral contract as it is made verbally, it is not impossible. Evidence of witness testimony, emails, and SMS/WhatsApp messages are acceptable to prove the existence and terms of the contract.

Fredrick Ochiel had admitted in his witness statement that he had collected the ultrasound machine from Kennedy Okoth and later paid him Kshs. 5,000/= as consideration. This ultimately convinced the court that indeed an oral contract existed between the two parties regardless of the terms of contract. The Honourable Judge D.K Kemei upheld the small claims Court award of Kshs. 145,000/= to the Respondent while stating that;

‘It transpired from the evidence that the Appellant had received the Respondent’s ultrasound machine, used it and failed to return it thereby leading the Respondent to suffer loss and that the Appellant took the Respondent for a ride as he used the Respondent’s ultrasound machine without making any payments and then failed to return it forcing the Respondent to file suit’.

The Honourable Judge D.K Kemei further added that it is not upon the court to re-write the terms of a contract in terms of favourability to one party unless coercion, fraud or undue influence are pleaded or proved by a party to the contract.

Therefore, in the wake of intensive digitalization, the strict enforcement of traditional forms of contracts is unconscionable. In fact, in view of catching up with digitalization, the Law should question at this point whether there is/should be a separate, legal and enforceable form of contract known as a digital contract? This perplexity arises from the fact that digital contracts, such as agreements on SMS/WhatsApp are neither verbal nor are they written with strict adherence to the rules of written contract.

 

Prepared By:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Bridget Inyanje & Maurine Korir

 

 

DEFENDING COUNTY STRUCTURES AND COUNTY PUBLIC OFFICERS IS STRENGHTENING DEVOLUTION

 

The Court of Appeal in Civil Appeal Nos. 17 & 18 of 2015 (Consolidated)- County Assembly of Kisumu & 2 others -Versus- Kisumu County Assembly Service Board & 6 others [2015] eKLR (hereafter the Kisumu Civil Appeals No.17& 18 of 2015) in a case challenging the impeachment of the inaugural Speaker of the County Assembly of Kisumu opined as follows after upholding the decision of the High Court quashing the said impeachment of the Speaker:

“89. The principle of devolution, under which the County Governments were created, is one of the central pillars of our Constitution. Everything should therefore be done to strengthen and not trifle with the operations and processes of its constituent parts, in particular those of County Governments. The County Governments have to comply with the letter and the spirit of the Constitution. If they don’t and instead violate the Constitution and the processes created under it, the court, by virtue of the authority conferred upon it by the same Constitution as its custodian, is under an obligation to overrule them.”

ELRC Petition No.1 of 2024- Maria Abdallah -Versus- County Assembly of Kisumu & Another (hereafter Kisumu ELRC Petition No.1 of 2024) is a constitutional petition filed to challenge the constitutionality of amendments to the section 10 of the Kisumu County Administration (Village Units) Act, 2019. The amendments were to allow the County Assembly of Kisumu to have approval powers over the persons appointed as Village Administrators by the Kisumu County Public Service Board. By having this power, the County Assembly would arrogate to itself human resource functions bestowed on the County Public Service Board with the great danger of allowing party politics as a basis of appointing the Village Administrators and not on consideration of the standards, values and principles set out in Articles 10, 27(4), 56(c) and 232(1) of the Constitution, the prescribed qualifications for holding or acting in the office, the experience and achievements attained by the candidate, the need to ensure that the candidates proposed for appointment have knowledge and experience in diverse fields. This is a violation of the Constitution and section 52 of the County Government Act,2012. The Act was challenged for want of public participation, breach of the Constitution and the County Government Act.

The Court agreed with the petitioner that, the Act was not subjected to qualitative and quantitative public participation. The court agreed with the submissions that the Bill subjected to public participation had only one (1) clause with two (2) subclauses and in passing section 10 the County Assembly introduced five (5) sections with four (4) subsections which fundamentally altered the Bill that had been subjected to public participation. On this basis, the Court found that:

“20…That resulted in the enactment of the Kisumu County Administration (Village Units) Act 2024. In my considered view the discussions on the amended clauses deprived the public of their right to public participation.”

The County Assembly in passing the Kisumu County Administration (Village Units) Act, 2024 undermined the essence of public participation as espoused by the Court of Appeal in Legal Advice Centre & 2 others -Versus- County Government of Mombasa & 4 others [2018] eKLR.

On substance, the Court went on to agree with the petitioner that, section 52 of the County Government Act was conclusive on the appointment of the Village Administrator by the County Public Service Board and there is no requirement of approval by the County Assembly as proposed by section 10 of the impugned Act.

The passage of the Act was also found to be fraught with procedural and legal impurities and in particular, the procedure of introducing the Bill to the County Assembly on the aspect of the proposer and the seconder of the Bill on the floor of the County Assembly.

In the end, the ELRC held that, the impugned provision of the law in the Kisumu County Administration (Village Units) Act 2024 being the outcome of a flawed Bill namely, the Kisumu County Administration (Village Units) Amendment Bill 2023, is hereby declared unconstitutional, null and void to that extent.

The decision of the Court in Kisumu ELRC Petition No.1 of 2024 is one of the measures of defending and strengthening devolution and especially, the County Public Service Board and their human resource functions of appointing the Village Administrators. This is in comport with the dictum by the Court of Appeal in Kisumu Civil Appeals No.15 & 18 of 2015 of doing everything to strengthen devolution.

 

Prepared By:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Moses Masai

 

ACCOUNTABILITY AND TRANSPARENCY: THE SAVING PEREMPTORY NORMS FOR PUBLIC PARTICIPATION AS A REQUIRMENT IN THE LEGISLATIVE PROCESS

 

The Finance Act,2023 has earned so much notoriety that the laurels have become withered. Its publicity stems from the fact that it introduced new tax bands. Of the many taxes introduced, the housing levy seems to be most popular but with negative publicity. Upon assent into law on 26^th June,2023, the Act was resisted by filing eleven (11) constitutional petitions challenging the legislative process leading to the enactment and the constitutionality of provisions of the Act. Of the many assaults to the Act, public participation as a national value and principle of governance has attained new status and the Court of Appeal has broken customary jurisprudence and hold that, Parliament after conducting public participation is obligated to give reasons for rejecting or adopting the proposals received.

The controlling jurisprudence on public participation is the Supreme Court decision in SC Petition No. 5 of 2017-British Tobacco Kenya Plc -Versus- Cabinet Secretary for the Ministry of Health and Others [2019] eKLR (the BAT case) which enunciated the guiding principles on public participation and inclusive and effective representation and integrity and transparency of the process are listed as components of meaningful public participation. When the Court of Appeal hold that, Parliament after conducting public participation is obligated to give reasons for rejecting or adopting the proposals received, is it aligned with the Supreme Court decision in BAT case, or it is a departure from the precedent?

The High Court on its part held that, there is no express obligation on Parliament to give written reasons for adopting or rejecting any proposals received from members of the public. Nonetheless, we think that in order to enhance accountability and transparency, it is desirable that the relevant committee, after conducting public participation gives reasons for rejecting or adopting proposals received. The need for giving reasons for rejecting or accepting proposals received from the public is to enhance transparency and accountability. But this is just obita dictum. The Court of Appeal elevated this obita dictum to ratio decindi. In its holding, the Court of Appeal recalled the preamble of the Constitution on aspirations of the people and that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. Therefore, transparency and accountability on the handling of the public views by Parliament are critical components of our participatory democracy. Vesting in Parliament arbitrary power to reject or ignore the contribution from the public without explanation or justification is the surest way of undermining public participation. The increased role of transparency and accountability in public participation, makes the twin national values and principles of governance, broad and all-inclusive in their reach, sweeping in their sway and peremptory in their command and failure to adhere them, is unmitigated unconstitutionality, illegality and irregularity.

As a compliance prerequisite for public participation henceforth, Courts should ascertain whether the public participation has been done in a manner that rationally connects. the consultation with the constitutional purpose of accountability, responsiveness and transparency. The holding by the High Court and previous Court decisions that, Parliament is not obligated to give reasons for accepting or rejecting views, is the surest way of rendering public participation illusory, cosmetic and a mere formality or public relations exercise, which the Supreme Court frown on in the BAT case.

In the end, the Court of Appeal reversed the High Court decision and held that, failure by Parliament to give reasons for accepting or rejecting the public views in enactment of the Finance Act,2023 was a violation of Article 10 (1) and (2) (c) of the Constitution rendering the entire Finance Act,2023 unconstitutional. The holding by the Court of Appeal by all probabilities will be subjected to an appeal to the Supreme Court and it will be interesting to see the decision of the apex in light with the BAT case.

 

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Moses Masai

AN OVERVIEW OF THE JURISDICTION OF THE SMALL CLAIMS COURT USING VARIOUS COURT DECISIONS

 

“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. This was held in the case Samuel Kamau Macharia & Another vs. Kenya Commercial Bank & 2 Others, Supreme Court Civil Appeal (Application) No. 2 of 2011

The jurisdiction of the Small Claims Court is set out in section 12 of the Small Claims Court Act. It provides for the following nature of claims and pecuniary jurisdiction:

a) The pecuniary jurisdiction of this court is Kshs 1,000,000/=
b)  a contract for sale and supply of goods or services
c)   a contract relating to money held and received
d)  liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property;
e)  compensation for personal injuries
f)   set-off and counterclaim under any contract

This Court does not have jurisdiction on certain matters as provided in section 13 which include;

a)      Defamation, Libel, Slander, Malicious Prosecution
b)      Dispute over a title to or Possession of Land,
c)     Employment and Labour Relations.”

Here are key aspects of the jurisdiction of the Small Claims Court, supported by relevant case law:

1. Personal Injury Claims

o   Case Law: Naomi Wanjiru Irungu v Francis Kimani Karanja H.C Civil Appeal No. E.037 of 2024,

o    Summary: The appellant lodged a personal injury claim in Ruiru Small Claims Court and averred that the court had the prerequisite jurisdiction to adjudicate the matter. However, the respondent averred that it did not have the jurisdiction and it relied on the Ogwari v Hersi Civil Appeal 223 of 2022 where the High Court in Mombasa held that the Small Claims Court could not entertain unquantifiable claims Further, it was relied on that the Small Claims Court purpose was to handle simple matters and not complex matters where strict proof is necessary.

o    Key Holding: The court held that the decision in  Ogwari vs Hersi (2023) KEHC 20111 (KLR) is not binding on this court as the decision was rendered in Mombasa High Court which is a court of concurrent jurisdiction to this court. Herein being Thika High Court. Hon. F. Muchemi thus opined that section 12 (1) (d) was not unconstitutional. The Small Claims Court being established aimed to expeditiously dispose of cases and provide a platform for litigants to access justice. Thus, the Small Claims Court has jurisdiction to hear and determine cases for compensation for injuries provided that the compensation shall be within its pecuniary jurisdiction of the court.

2. Declaratory Suits

• Case Law: Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023) [2024] KEHC 7637 (KLR) (25 June 2024) (Judgment)
• Summary: The respondent instituted a declaratory suit against the appellant in the small claims court in Kisumu. It was brought under the Insurance (Motor Vehicles Third Party Risks) Act, seeking to have the appellant, an insurance company settle the decree. The decree was for an award of damages of Kshs 467,490 entered against the Appellant’s insured by the appellant herein. 
• Key Holding: The court looked into the issue of jurisdiction of the Small Claims Court jurisdiction in light of the declaratory suit and upheld that such claims are not provided for in the Small Claims Act.

3. Rental Claims

• Case Law: Christoffersen v Kavneet Kaur Sehmi t/a The Random Shop (Civil Appeal E036 of 2022) [2022] KEHC 14035 (KLR) (Commercial and Tax) (18 October 2022) (Judgment)
• Summary: The Small Claims Court dismissed the appellant’s claim seeking judgment of Kshs 100,000/= against the respondent on account of outstanding rent. For a claim to be brought before the small claims court, it must fit the description of section 12(1) of the Small Claims Act. Counsel for the appellant argued that rent is a form of service, hence was in the purview of Section 12 (1) of the act.
• Key Holding: The court stated that rent has a specific and known meaning which does not extend to a contract for services. Extending the meaning of rent to the rubric of a contract for sale of goods and services would amount to expanding the court’s jurisdiction by craft or innovation. Thus, it was concluded that a claim for rent does not fall within the sphere of “money held and received’’ as the landlord in a claim for rent arrears does not hold any money that is due to a tenant. Nor does a claim for rent give rise to tortious liability or a claim for compensation for injuries. The court therefore concluded that a claim for rent or rent arrears is outside the jurisdiction of the Small Claims Court and ought not to have been entertained.

4. Land Matters

• Case Law: Palms Resort Limited v Qureshi & 2 others (Civil Appeal E167 of 2022) [2023] KEHC 23644 (KLR) (16 October 2023) (Judgment)
• Summary: This is an appeal that emanated from the Small Claims Court in Mombasa. The primary issue was related to private land and contracts, choses in action or other instruments granting any enforceable interests in land.  This is expressly excluded in from the Small Claims Court Act.
• Key Holding:  The small claims court does not have jurisdiction to adjudicate such matters that is, jurisdiction ratione materiae.

Conclusion

For any matter to be filed in the Small Claims Court, it ought to meet the prerequisite jurisdiction laid down in the Act precisely in section 12. Thus, one cannot craft any pleading to fit the pecuniary jurisdiction, yet the claim is one that has been exclusively ousted from the jurisdiction of the court.

Further, it is my opinion that there should be clarity in light of personal injury suits and declaratory suits being adjudicated in the Small Claims Court.

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Mercy Muthoni

 

 

AN OVERVIEW OF INITIATING PUBLIC PRIVATE PARTNERSHIP IN KENYA

 

Kenya has stable PPP legal and regulatory framework which comprises of the Constitution of Kenya 2010, the Public Private Partnership Act Cap 430, the Public Procurement and Assets Disposal Act ,2015, court rulings, regulations, guidelines and tribunal determination

The Public Private Partnership Act Cap 430 under section 37 provides procurement methods which a contracting authority may procure a Public Private Partnership Project.

A Public private partnership may be initiated through:

• Direct procurement. (Section 38)
• Privately initiated proposals (Section 40)
• Competitive bidding (Section 46)
• Restricted bidding (Section 45)

 

DIRECT PROCUREMENT.

A contracting authority in consultation with the directorate may use direct procurement if the conditions under section 38 are satisfied inter alia: the private party possesses the intellectual property rights to the key approaches or technologies required for the project, the works and services are only available from a limited number of private parties etc.

A contracting authority is required to:

• Issue a tender document which shall be the basis of the tender preparation by the contracting authority and subsequent negotiations
• Appoint an evaluation committee in accordance to the Act for negotiation of a direct procurement of a project.
• Ensure appropriate approvals under this Act have been granted;
• Ensure that the resulting project agreement complies with this act;

PRIVATE- INITIATED PROPOSALS

A private party may submit a privately initiated proposal to a contracting authority.

A contracting authority may consider the privately initiated proposal submitted if:

• The project is aligned with the national infrastructure priorities and a demonstrated societal need.
• The project provides value for money;
• The project proposal provides sufficient information for the contracting authority to assess fiscal affordability and the potential contingent liability implication of the proposal;
• The project can be delivered at a fair market price;
• The project is supported by all documents
• The project supports the efficient transfer of risk from the public sector  
• The contracting authority shall submit the privately initiated proposal to the directorate

 

The directorate and the contracting authority upon evaluation of the privately initiated proposal, may or may not approve the private-initiated proposal. Such approval however shall not create an obligation on the part of the directorate, contracting authority or the government towards the private party.

 

RESTRICTED BIDDING

A contracting authority may use restrictive bidding if any of the following conditions are satisfied:

• Competition for contract, because of the complex or specialized nature of the works and services is restricted to prequalified tenderers;
• The time and costs required to examine and evaluate a large number of tenders would be disproportionate to the value of the works or services procured.
• If there is evidence to the effect that there are only a few known suppliers of the whole market of the works or services;
• An advertisement is place where applicable on the procuring entity website regarding the intention to procure through limited tender.

 

COMPETITIVE BIDDING

A contracting authority shall on approval of a feasibility report, invite requests for qualifications from qualified bidders with respect to the proposed project.

A contracting authority shall specify the eligibility criteria of a bidder and may require each bidder to provide statements or documents to prove the bidder’s eligibility.

A private party intending to respond to a request for qualification under competitive bidding may do so as part of the consortium of the private parties.

A private party is eligible to respond to a request for qualification if the party:

• Satisfies the criterial specified in the request for qualification issued by the contracting authority.
• Has the technical and financial capacity to undertake he proposed project;
• Has the legal capacity to enter into a project agreement with the contracting authority;
• Is not insolvent, in receivership, bankrupt or in the process of being wound up.

The contracting authority shall upon issuing a notice constitute a pre-qualifying committee for the purpose of pre-qualifying bidders.

A bidder may be disqualified at the pre-qualification stage if they provide false, inaccurate or incomplete information, colludes, connives and is involved in any corrupt or any dishonest practice intended to confirm unfair advantage over other bidders.

After pre-qualification and short listing of pre-qualified bidders, the contracting authority shall prepare tender documents in relation to a project for the purpose of inviting bids from eligible bidders.

A bidder intending to bid shall complete and submit a technical and financial bid. Upon evaluation of the bids the evaluation team may reject a bidder’s submissions where the bidder fails to comply with the conditions specified in the tender documents.

A bidder whose bid has been rejected under section shall not be entitled compensation

On approval of the project, the contracting authority shall notify in writing all bidders of their decision.

The contracting authority shall then proceed to execute the project agreement, and the private party shall be required to commence the project within 12 months.

The contracting authority reserves the right to cancel a tender process at any time before the execution of the project agreement if it is in the public interest to do so.

 

 

Prepared by:

PATRICKS LAW ASSOCIATES

This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact on info@plasslaw.com or 0700 753 748

 

Written by Bridget Inyanje