Nairobi — The Court of Appeal has ordered a fresh review of a disputed Kenya Electricity Generating Company (KenGen) carbon credits tender, ruling that procurement entities cannot introduce new evaluation criteria during the due diligence stage of a tender process.
In a judgment delivered on July 10, the appellate court allowed an appeal by Sintmond Group Limited, overturned a decision by the Public Procurement Administrative Review Board (PPARB) and directed that the dispute be heard afresh by a differently constituted review panel.
The case concerns Tender No. KGN-SALE-005-2025 for the sale of Certified Emission Reductions (CERs), commonly known as carbon credits, which have become an increasingly valuable asset in global climate finance markets.
Sintmond Group challenged the evaluation of its bid, arguing that although it had initially met one of the mandatory tender requirements, KenGen later introduced additional evaluation standards during the due diligence process.
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The company maintained that the new requirements effectively altered the rules of the competition after bids had already been submitted.
The Court of Appeal agreed, holding that while procuring entities have the right to conduct due diligence, the exercise must be confined to verifying information already provided by bidders and cannot be used to impose fresh conditions.
"Such due diligence must remain anchored to the disclosed tender criteria."
"It may not be used to introduce fresh evaluative criteria, impose new benchmarks, or require compliance through a different category of evidence."
The judges said allowing procuring entities to change evaluation standards after bid submission would undermine the principles of fairness, transparency and equal treatment enshrined in Kenya's public procurement framework.
Rather than determine the successful bidder, the court directed the PPARB to reconsider the dispute before a new panel while applying the legal principles set out in the judgment, particularly on the limits of due diligence under Section 83 of the Public Procurement and Asset Disposal Act.
The ruling is expected to shape future public procurement processes, especially for complex transactions involving carbon markets, climate finance and other environmental assets.
The court also ordered each party to bear its own legal costs, citing the protracted nature of the dispute and its wider public interest significance.
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