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Court of AppealPartially AllowedNot stated in the judgment· [2021] KECA 272 (KLR)

Skaga Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal (Application) E232 of 2021) [2021] KECA 272 (KLR)

Court of Appeal
3 December 2021
DMD. K. MUSINGAAMA. K. MURGORJMJ. MOHAMMED
1,653 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal filed without leave, confirming that procedural court directions are not appealable as of right in Kenya.

What this practically means

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Executive summary

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This was an application by notice of motion dated 20th May 2021 before the Court of Appeal at Nairobi, in which the 4th respondent (through its director Solomon Kimeu) sought the striking out of a notice of appeal dated 26th April 2021 and the entire record of appeal dated 27th April 2021. The underlying dispute concerned a public tender for the supply of K9 dogs and training of Dog Handlers, which had generated multiple review requests before the Public Procurement Administrative Review Board and judicial review proceedings before the High Court. On 17th March 2021 Ngaah, J granted leave to institute judicial review on terms; on 20th April 2021 Nyamweya, J issued further directions on service, filing and a mention date. Instead of complying, the appellant lodged an appeal against those directions without seeking leave. The 4th respondent contended the appeal was incompetent because the directions were not appealable as of right under section 75(g) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. The appellant argued the directions amounted to an appealable 'decision' under section 175(4)(d) of the Public Procurement and Assets Disposal Act, given the judge's statement that she would not deliver judgment within the statutory 45 days. The Court held that the impugned directions were neither among the orders appealable as of right nor a final dispositive decision, so leave was required but never sought. Allowing the application, the Court struck out the notice of appeal and record of appeal with costs to the 4th respondent. Judgment delivered on 3rd December 2021 by Musinga, Murgor and Mohammed, JJA.

Key legal issues

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01

Whether the 20th April 2021 directions were appealable without leave

Holding

They were not appealable as of right; the appellant ought to have sought leave.

Reasoning

Section 75(1) of the Civil Procedure Act lists orders appealable as of right, and Order 43 of the Civil Procedure Rules sets out further such orders. The directions of 20th April 2021 - dealing with service, filing of submissions and a mention date - do not fall within either list. Nor were they final and dispositive. Accordingly, the appeal could only have been lodged with leave, which was never sought.

p. 4
02

Whether the 45-day statutory timeline under section 175(4)(d) of the Public Procurement and Assets Disposal Act justified the appeal

Holding

No. The statutory timeline could not be used to bypass appellate procedure.

Reasoning

While the Court agreed that the judicial review application should have been determined within 45 days under section 175(4)(d) of the Public Procurement and Assets Disposal Act, non-compliance with that timeline by the High Court did not entitle the aggrieved party to lodge an appeal without leave. The proper route was to comply with the procedure for appeals; jumping the gun was unprocedural and fatal to the appeal.

p. 4
03

Whether the appeal could proceed at all

Holding

No. The appeal was instituted without leave and does not lie; it was struck out.

Reasoning

Section 3(1) of the Appellate Jurisdiction Act confers jurisdiction to hear appeals only 'in cases in which an appeal lies to the Court of Appeal under law.' Since the appeal was lodged without the leave required by section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, the appeal did not lie, and the notice and record of appeal were struck out with costs.

p. 4

Legal principles established

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  • An appeal to the Court of Appeal against an order of the High Court lies only if the order is listed under section 75(1) of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, or leave to appeal is obtained.
  • Directions of a procedural, non-dispositive nature are not final decisions and do not permit an appeal as of right.
  • Statutory timelines for determining procurement disputes do not authorise a party to file an appeal unprocedurally.

Court orders

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  1. 1.The notice of appeal dated 26th April 2021 is struck out
  2. 2.The entire record of appeal dated 27th April 2021 is struck out
  3. 3.Costs of the application awarded to the 4th respondent

Authorities

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Legislation

  • Civil Procedure Actsection 75(1), including paragraph (g)
  • Civil Procedure Rules, 2010Order 43
  • Court of Appeal Rulesrules 39(b), 42, 43 and 84
  • Appellate Jurisdiction Actsection 3(1)
  • Public Procurement and Assets Disposal Actsection 175(4)(d)
  • Constitution of KenyaArticle 227
On appeal from
High Court
Not stated (judicial review application; reference to Civil Appeal 39 of 2021 in directions)
Jurisdiction invoked
Section 3(1) of the Appellate Jurisdiction Act; section 75 of the Civil Procedure Act as read with Order 43 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Skaga Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal (Application) E232 of 2021) [2021] KECA 272 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/272/eng@2021-12-03

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