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Court of AppealDismissedCivil Appeal (Application) No. 276 of 2017· [2018] KECA 681 (KLR)

Questa Care Limited v Public Procurement Administrative Review Board & 2 others [2018] KECA 681 (KLR)

Court of Appeal
21 March 2018
2,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to halt a medicine supply tender because the contract was already signed and stopping deliveries would hurt patients who needed the drugs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Gatembu Kairu and Murgor, JJ.A) on Questa Care Limited's Notice of Motion dated 30th November 2017 under section 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, 2010, seeking an injunction to restrain KEMSA and Simba Pharmaceuticals from signing or performing a tender contract for the supply of antiretroviral medicines pending an intended appeal against the High Court's decision (Aburili, J.) quashing the Public Procurement Administrative Review Board's decision, which had adjudged the applicant a local manufacturer entitled to a 15% preference margin. The Board had directed a 15% preferential margin against Simba's tender price, but the High Court quashed that decision and prohibited the re-evaluation and application of the margin. Before the motion could be heard, the tender contract was signed on 29th November 2017 and performance, involving delivery of consignments of ARV drugs to KEMSA for distribution to the 47 counties, was substantially complete. The Court found the intended appeal arguable, since the dispute turned on the interpretation of the definition of 'manufacturer' under the Pharmacy and Poisons Act Cap 244 versus the Public Procurement and Disposals Act, a matter of law within its mandate. However, on the nugatory limb the Court held the orders sought were overtaken by events, refused to grant retrospective orders on the ground that a party is bound by its pleadings, and, adopting the utilitarian public-interest reasoning in East African Cables Ltd, declined to interrupt the supply of essential medicines to HIV/AIDS patients in dire need. The application was dismissed with costs in the appeal. This ruling does not disturb the High Court's judgment, which remains for determination in the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable because the dispute over the definition of 'manufacturer' under the Pharmacy and Poisons Act versus the Public Procurement and Disposals Act is a matter of statutory interpretation, which falls within the Court's mandate.

Reasoning

The gravamen of the intended appeal was whether the applicant was a manufacturer under the Pharmacy and Poisons Act Cap 244 or the Public Procurement and Disposals Act, and which definition applies. The Court found this to be a question of interpretation of statutory provisions, a matter of law squarely within its mandate, and therefore held the first rule 5(2)(b) limb satisfied.

p. 3
02

Nugatory value and overtaken events

Holding

Although the appeal was found arguable, the application failed on the nugatory limb because the tender contract had been signed on 29th November 2017 and the supply of antiretroviral drugs substantially completed, rendering the orders sought ineffective.

Reasoning

The applicant conceded the contract was signed before the application was filed and that supply was substantially complete, with only one consignment due at Mombasa and one final consignment outstanding. The Court held the orders were overtaken by events and nothing remained for it to do. It also declined to grant retrospective orders as none had been prayed.

p. 3
03

Public interest in procurement of essential medicines

Holding

It would be improper to stop the supply of antiretroviral drugs for HIV/AIDS patients in dire need; the utilitarian principle of producing the greatest happiness for the greatest number supports refusing the injunction.

Reasoning

The Court adopted the reasoning in East African Cables Ltd, invoking John Stuart Mill's utilitarian doctrine, and held that interrupting the supply of essential antiretroviral drugs would cause greater harm and suffering to Kenyan patients than any prejudice to the applicant, whose remedy lies in the appeal and damages if successful.

p. 3

Legal principles established

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  • To obtain an injunction or stay pending appeal under rule 5(2)(b), an applicant must satisfy the twin principles that the intended appeal is arguable and that, if it succeeds, it will be rendered nugatory.
  • In interlocutory procurement matters affecting essential public supplies, the Court will apply a utilitarian public-interest calculus and decline orders that would harm the greatest number of people.
  • A party is bound by its pleadings; a court cannot grant relief not prayed for, even where it is sympathetic to the applicant's predicament.

Court orders

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  1. 1.The Notice of Motion dated 30th November 2017 is dismissed
  2. 2.The costs of the application to be costs in the appeal

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3A
  • Court of Appeal Rules, 2010rule 5(2)(b)
  • Pharmacy and Poisons Act, Cap 244section 2
  • Public Procurement and Assets Disposal Act, 2015section 155
  • Constitution of Kenya, 2010Article 277
  • Fair Administrative Actions Actsection 3(3)
  • Law Reform Actsection 8

Cases cited (8)

  • Independent Electoral and Boundaries Commission vs National Super Alliance (NASA) Kenya & 6 others
    [2017] eKLR
  • Daniel Ptiony & others vs Cheporonger Ngoleswa
    CA.NAI 46 of 2010
  • East African Cables Limited vs Public Procurement Complaints, Review and Appeals Board & another
    [2007] eKLR
  • Githunguri vs. Jimba Credit Corporation Ltd. (No. 2)
    (1988) KLR 838
  • J.K. Industries Ltd. vs. Kenya Commercial Bank Ltd.
    (1982-88) 1 KAR 1688
  • Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited
    Civil Application No. Nai. 98 of 2002 (unreported)
  • Al-Mahra Limited vs. Premier Foods Industries Limited
    Civil Application No. Nai. 163 of 2006
  • National Union of Water Sewerage Employees & 3 Others vs Nairobi City Water & Sewerage Co. Ltd & 3 Others
    Civil Application No. 85 of 2013
On appeal from
High Court at Nairobi
Judicial Review No. 186 of 2017 (as consolidated with Judicial Review No. 185 of 2017)
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, 2010 (interlocutory application for injunction pending an intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Questa Care Limited v Public Procurement Administrative Review Board & 2 others [2018] KECA 681 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 276 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/681/eng@2018-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.