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Court of AppealStruck OutCivil Appeal E598 of 2021· [2022] KECA 407 (KLR)

ADK Technologies Ltd in Consortium with Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 others

Court of Appeal
4 March 2022
SKS. ole KantaiKLK. I. LaibutaKMK. M'inoti
1,741 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 confirmed that procurement appeals must be filed within 7 days of a High Court decision, or the right to appeal is lost entirely.

What this practically means

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Executive summary

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The appellant, an unsuccessful bidder in a National Treasury tender, sought review by the Public Procurement Administrative Review Board, which struck out its request after the request was disowned by ADK Technologies Ltd in whose name it had been made. The appellant then commenced judicial review in the High Court, but Ngaah, J. sustained a preliminary objection and struck out the application on 9th April 2021. The appellant lodged its notice of appeal on 13th April 2021 and its record of appeal on 17th October 2021, some 191 days after the High Court decision. At the hearing, the Court of Appeal raised, suo motu, the question whether it had jurisdiction under section 175(4) and (5) of the Public Procurement and Asset Disposal Act, which requires an appeal to be filed within seven days and determined within forty-five days, failing which the Review Board's decision becomes final and binding. Applying its recent decisions in the Aprim Consultants and TSK Electronica cases, the Court held that the statutory timelines are mandatory and cast in stone, that its jurisdiction is time-bound and extinguished by effluxion of time, and that no discretion exists to extend them. Since the appeal was filed 191 days late, and even 45 days from filing had long elapsed, the Court lacked jurisdiction. The appeal was struck out with costs to the respondents. The judgment binds subordinate courts and tribunals on the mandatory nature of section 175 timelines in procurement disputes.

Key legal issues

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01

Whether the Court of Appeal had jurisdiction over an appeal filed 191 days after the High Court decision, outside the 7-day window in section 175(4) of the PPAD Act

Holding

The Court had no jurisdiction; section 175(4) imposes mandatory timelines that cannot be varied, and the Review Board's decision became final upon expiry of the prescribed periods.

Reasoning

Following its recent decisions in the Aprim and TSK Electronica cases, the Court held that Parliament deliberately constricted the time for filing, hearing and determining procurement disputes and expressly enacted the consequence of default: crystallisation and finality of the Board's decision. The jurisdiction of the Court of Appeal is time-bound and ceases by effluxion of time. The appeal filed 191 days late, and even 45 days from filing had long elapsed, so jurisdiction was extinguished.

Legal principles established

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  • The timelines in section 175(4) of the PPAD Act are mandatory and cast in stone; an appeal to the Court of Appeal must be filed within 7 days of the High Court decision and determined within 45 days, failing which the Review Board's decision becomes final and the Court's jurisdiction is extinguished by effluxion of time.
  • A question of jurisdiction is a threshold question that may be raised by a party or by the court on its own motion and must be decided forthwith before the merits.

Court orders

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  1. 1.The appeal is struck out with costs to the respondents

Authorities

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Legislation

  • Public Procurement and Asset Disposal Actsection 175(1)-(7)
  • Public Procurement and Asset Disposal Actsection 5
  • Court of Appeal Rules

Cases cited (3)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    A question of jurisdiction is a threshold question, may be raised by a party or the court suo motu, and must be decided forthwith.

  • Aprim Consultants v. Parliamentary Service Commission & Another
    CA. No. E039 of 2021

    Section 175 of the PPAD Act is couched in mandatory terms; jurisdiction is time-bound and ceases by effluxion of time.

  • The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others
    CA. No. E012 of 2022

    Appeals under section 175(4) must be filed within 7 days and determined within 45 days; the timelines are cast in stone.

On appeal from
High Court of Kenya
HCJR Case No. E027 of 2021
Jurisdiction invoked
Section 175(4) and (5) of the Public Procurement and Asset Disposal Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "ADK Technologies Ltd in Consortium with Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 others", Case Analysis (2022). Civil Appeal E598 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/407/eng@2022-03-04

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