Republic v. The Public Procurement Administrative Review Board, Ex-parte Kenya Electricity Generating Company Ltd.
The bottom line
#Kenya's Court of Appeal paused the review board proceedings and enforcement of a mandamus order, but confirmed a quashing order cannot be suspended pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court was satisfied the intended appeal raises arguable grounds, particularly on the superior court's jurisdiction to nullify the contract.
One proposed ground questioned the superior court's jurisdiction to declare the contract null and void when nullification had neither been sought nor was within the judicial review jurisdiction. The Court laid out the statutory basis under Sections 67, 68, 93, 94, 97 and 100 of the Act and found the grounds fit for consideration.
Whether the appeal would be rendered nugatory absent a stay
Unless the Review Board proceedings were stayed, the appeal would be rendered nugatory as the substratum of the appeal would not subsist.
The appeal questions the legality of the judicial review proceedings that nullified the contract and granted mandamus. If the Review Board proceeded to hear the Request for Review, the substratum of the appeal would disappear. The Court also noted the public interest in procurement jurisprudence being determined by the court of last resort.
Whether the application was competent despite seeking a stay of certiorari and mandamus rather than stay of execution
The application was incompetent as regards certiorari but the defect as to mandamus was minor and curable under the overriding objective.
Rule 5(2)(b) permits only a stay of execution, an injunction, or a stay of further proceedings. Certiorari cannot be stayed; mandamus can. The Court treated the application as one for stay of execution of the mandamus order, or alternatively a stay of further proceedings resulting from it.
Legal principles established
#- An order of certiorari cannot be stayed pending appeal; it can only be set aside in the appeal itself.
- The execution of an order of mandamus can be stayed pending appeal under Rule 5(2)(b).
- A defective application for stay may be treated as one for stay of execution under the overriding objective.
Court orders
#- 1.Execution of the order of mandamus granted by the superior court on 18th March, 2010 is stayed pending the determination of the intended appeal
- 2.Further proceedings in Request for Review No. 2 of 2010 are stayed until the determination of the appeal
- 3.Costs of the application shall be costs in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 53 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v. The Public Procurement Administrative Review Board, Ex-parte Kenya Electricity Generating Company Ltd.", Case Analysis (2010). Civil Application No. 63 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/501/eng@2010-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.