Questa Care Limited v Public Procurement Administrative Review Board & 2 others [2018] KECA 681 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Arguability of the intended appeal
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.
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.
Nugatory value and overtaken events
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.
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.
Public interest in procurement of essential medicines
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 30th November 2017 is dismissed
- 2.The costs of the application to be costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ashford Kinoti Muriungi v The Public Procurement Administrative Review Board & 2 Others (Ruling No 2)[2020] KEHC 1233 (KLR)4 Dec 2020
- Union of Kenya Civil Servants v Ministry of Public Service, Youth and Gender & 2 others; Public Procurement and Regulatory Authority & another (Interested Parties) [2020] KEELRC 1755 (KLR)[2020] KEELRC 1755 (KLR)21 Jan 2020
- Republic (Ex parte Haji Motors Limited) v Public Procurement Administrative Review Board & 2 Others[2018] KEHC 2735 (KLR)4 Oct 2018applied
Cite this brief
#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.