Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal E039 of 2021· [2021] KECA 1090 (KLR)

Aprim Consultants v Parliamentary Service Commission & another

Court of Appeal
8 October 2021
PKP O KiageHOH M OkwenguFSF Sichale
3,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that if the High Court misses the 45-day deadline to decide a procurement dispute, the Review Board's decision becomes final.

What this practically means

#

Executive summary

#
This judgment supplies the reserved reasons for a decision rendered on 3 March 2021 allowing Aprim Consultants' appeal against part of a High Court judicial review judgment (Nyamweya, J.) which had quashed a decision of the Public Procurement Administrative Review Board and reinstated termination letters issued by the Parliamentary Service Commission. The Board had upheld Aprim's review and directed completion of the procurement. The Court of Appeal held that the High Court judgment, delivered some 185 days beyond the 45-day period prescribed by section 175(3) of the Public Procurement and Asset Disposal Act, was a nullity for want of jurisdiction. The Court construed section 175 as plain and unambiguous, setting strict sequential timelines whose breach by the High Court crystallises the Board's decision into finality under section 175(5). It endorsed AL Ghurair and Odunga J's Wajir reasoning that inconvenience or impracticality cannot excuse departure from clear statutory commands, and applied the Supreme Court's jurisdictional principles in Samuel Macharia. The Court also confirmed that its own decision of 3 March 2021, rendered within 45 days of the lodging of the record, complied with section 175(4), reserving reasons being permissible under Rule 32(5) of the Court of Appeal Rules. While acknowledging serious practical difficulties with the timelines and doubting whether adequate stakeholder engagement preceded their enactment, the Court held that reform is a matter for Parliament. Each party was ordered to bear its own costs, and copies of the judgment were directed to be served on the Attorney General and the Speakers of both Houses of Parliament.

Key legal issues

#
01

Consequences of the High Court's failure to determine a procurement judicial review within 45 days

Holding

The High Court's jurisdiction in procurement judicial review is time-bound; once the 45 days expired, jurisdiction ceased by effluxion of time and the judgment delivered 185 days late was a nullity, leaving the Board's decision final and binding.

Reasoning

Section 175 sets strict sequential timelines for applicants, the High Court and the Court of Appeal, and expressly enacts the consequence of default: the Board's decision crystallises with finality. The provision is plain and unambiguous, admitting no interpretive wriggle room. Courts cannot decline to apply it on grounds of practicality, court diaries or fair-trial concerns; the remedy lies with Parliament.

p. 7
02

Whether the Court's own decision of 3 March 2021 complied with section 175(4)

Holding

Yes. Rendering the decision within 45 days of the lodging of the record on 1 February 2021 satisfied the statute; reserving reasons to a later date is permissible under Rule 32(5) of the Court of Appeal Rules.

Reasoning

The 45-day command is obeyed by issuance of the decision within the timeline; thereafter the period no longer applies, so delay in delivering reasons causes no legal infirmity. Since the decision is final under section 175(4), no risk arises of time running out for further appeals while reasons are awaited, and no real prejudice was caused.

p. 3
03

Whether courts may disregard statutory timelines on grounds of impracticality

Holding

No. Courts must give effect to the express language of Parliament; the most they can do is point out difficulties and propose reform.

Reasoning

Endorsing AL Ghurair and Odunga J's reasoning in the Wajir County Government case, the Court held that a provision limiting time for judicial review is perfectly in order, that it is not competent for a court to assume Parliament made a mistake, and that blunders in legislation must be corrected by the legislature, not repaired by courts.

p. 6

Legal principles established

#
  • The timelines in section 175 of the Public Procurement and Asset Disposal Act are mandatory; failure by the High Court to determine a procurement judicial review within 45 days renders the Review Board's decision final and binding, and any judgment delivered outside the period is a nullity.
  • A court may render its decision within a statutory timeline and reserve its reasons to a later date without breaching the timeline.

Court orders

#
  1. 1.Each party to bear its own costs of the appeal and of the High Court proceedings
  2. 2.Certified copies of the judgment and reasons to be served upon the Hon. Attorney General and the Hon. Speakers of the two Houses of Parliament

Authorities

#

Legislation

  • Public Procurement and Asset Disposal Actsection 175
  • Public Procurement and Asset Disposal Actsection 63(1)(a)(l)
  • Court of Appeal RulesRule 32(1), 32(4), 32(5)
  • Law Reform Act Cap 26, Laws of Kenyasection 9(3)
  • Fair Administrative Action Act
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 47
  • Public Procurement and Disposal Act, 2005

Cases cited (8)

  • Republic v Kenya Revenue Authority Ex Parte Webb Fontaine Group Fz-llc & 3 Others
    [2015] eKLR

    High Court judges' view that they possessed jurisdiction to decide judicial review proceedings outside statutory timelines

  • Republic v Public Procurement Administrative Review Board & Anor Ex Parte Kleen Homes Security Services Ltd
    [2017] eKLR

    Aburili J's view that the 45-day timeline was impracticable and impeded fair trial rights under Article 50

  • AL Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 others
    [2017] eKLR

    Endorsement of the constitutionality and elaborate time-bound scheme of section 175

  • Republic v Public Procurement Administrative Review Board & Another Ex-parte Selex Sistemi Integrati
    [2008] KLR 728

    Ouster clauses and elaborate provisions tailored to accelerate finality of public projects

  • Republic v Public Procurement Administrative Review Board & Anor, Ex Parte Wajir County Government
    [2016] eKLR

    A shorter statutory period for challenge is permissible; courts cannot alter legislative intent

  • Samuel Macharia & Anor v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR

    Jurisdiction flows from the Constitution or legislation; courts cannot expand jurisdiction by judicial craft

  • In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011

    A court must operate within constitutionally defined jurisdictional limits

  • Italframe Ltd v Mediterranean Shipping Co.
    [1986] KLR 54; [1986-1989] EA 174

    Courts may remedy defects of language but cannot imply provisions to remedy omissions

On appeal from
High Court of Kenya at Nairobi
HC Nairobi Judiciary Review Case No. 117 of 2020
Jurisdiction invoked
Section 175(4) of the Public Procurement and Asset Disposal Act (appeal to the Court of Appeal); Rule 32(4) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Aprim Consultants v Parliamentary Service Commission & another", Case Analysis (2021). Civil Appeal E039 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1090/eng@2021-10-08

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