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Court of AppealPartially AllowedRule 4 Application arising from Nairobi HCJR Case No. E027 of 2021· [2021] KECA 424 (KLR)

Adk Technologies Limited In Consortium WithTransnational Computer Technologies Limited v Public Procurement Administrative Review Board &4 others [2021] KECA 424 (KLR)

Court of Appeal of Kenya
9 July 2021
1,389 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 let ADK Technologies appeal late because e-filing system failures caused the delay, ruling a five-day delay excusable.

What this practically means

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Executive summary

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ADK Technologies Limited, through Cheboi Kiprono Advocates, moved the Court of Appeal by notice of motion dated 29th April 2021 seeking extension of time to lodge a notice of appeal against the judgment of Ngaah Jairus J in Nairobi HCJR Case No. E027 of 2021, a judicial review procurement matter delivered on 9th April 2021. The notice of appeal was lodged on 28th April 2021, outside the period under the Court of Appeal Rules, and the applicant attributed the delay to failures in the Judiciary E-filing system, corroborated by a letter dated 15th April 2021 stamped as received by the Judicial Review Division. The 4th respondent raised a preliminary objection questioning the Court's jurisdiction to extend statutory timelines under Section 175(4) of the Public Procurement and Asset Disposal Act, while the 5th respondent objected on grounds of non-service under Rule 77(1) and the applicant's locus standi. The court held the jurisdictional conflict between the Rules and the Act to be genuine but declined to determine it, confining itself to Rule 4 under which the application was expressly brought. Applying the settled Rule 4 principles, the court found the five-day delay not inordinate and adequately explained, held the locus standi objection misconceived since the applicant was party below, and held the non-service complaint inchoate because Rule 77 applies only after a valid notice exists. The application was allowed: time was extended and the notice of appeal deemed duly filed within time, pursuant to Rule 4 and not Section 175(5) of the PPADA. Costs were made to abide the outcome of the appeal.

Key legal issues

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01

Jurisdiction to extend time in procurement appeals

Holding

The court declined to determine the conflict between Section 175 of the PPADA and the Court of Appeal Rules because the application was expressly brought under Rule 4, and confined itself to that Rule.

Reasoning

The 4th respondent raised a preliminary objection that the court lacked jurisdiction to extend statutory timelines under Section 175(4) of the PPADA. The court accepted the issue was germane but noted the application was premised on Rule 4, not the PPADA, and therefore restricted itself to the Rule 4 discretion, leaving the statutory conflict for another day.

p. 2
02

Whether the delay of five days was excusable

Holding

A five-day delay was not inordinate and was sufficiently explained by the failure of the Judiciary E-filing system, evidenced by correspondence to the Deputy Registrar sent before the deadline expired.

Reasoning

The applicant was required to file by 23rd April 2021 under Rule 75 but lodged the notice on 28th April. The court found the five-day period not inordinate, and the annexed letter of 15th April 2021, stamped as received by the Judicial Review Division, corroborated the claimed E-filing difficulties and showed diligence before expiry of time.

p. 3
03

Locus standi and service objections

Holding

The applicant, having been the ex parte applicant before the High Court, was properly before the Court, and the complaint of non-service under Rule 77 was premature.

Reasoning

The 5th respondent challenged the applicant's locus standi and non-service of the notice of appeal. The court noted from the intituling of the High Court petition that the applicant was a party below, so it was properly before the Court; and Rule 77 service obligations arise only once a valid notice of appeal exists.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, requiring an adequate explanation for the delay, absence of prejudice, and an application brought without undue delay.
  • Rule 77 on service of a notice of appeal applies only after a valid notice of appeal has been filed; a complaint of non-service is inchoate where the notice itself is the subject of an extension application.

Court orders

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  1. 1.Time for lodging the notice of appeal is extended
  2. 2.The notice of appeal lodged with the Deputy Registrar on 28th April, 2021 is deemed as having been duly filed within time
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 77(1)
  • Public Procurement and Asset Disposal Act 2015Section 175(4)
  • Public Procurement and Asset Disposal Act 2015Section 175(5)

Cases cited (3)

  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Fakir Mohamed vs. Joseph Mugambi & 2 Others
    [2005] eKLR
  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    [2020] eKLR
On appeal from
High Court of Kenya at Nairobi, Judicial Review Division
Nairobi HCJR Case No. E027 of 2021 (Republic vs Public Procurement Administrative Review Board and 4 Others Ex parte ADK Technologies Limited in Consortium with Transnational Computers Technology Limited)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time discretion)

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, "Adk Technologies Limited In Consortium WithTransnational Computer Technologies Limited v Public Procurement Administrative Review Board &4 others [2021] KECA 424 (KLR)", Case Analysis (2021). Rule 4 Application arising from Nairobi HCJR Case No. E027 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/424/eng@2021-07-09

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