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Court of AppealDismissedCivil Appeal 022 of 2022· [2022] KECA 424 (KLR)

Joint Venture of Lex Oilfield Solutions Ltd & CFAO Kenya Ltd v Public Procurement Administrative Review Board & 4 others

Court of Appeal
4 March 2022
SKS. ole KANTAIKLK. I. LAIBUTAKMK. M'INOTI
2,124 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 judicial review cases must be decided within 45 days, or the court loses power to hear them.

What this practically means

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Executive summary

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The appellant, an unsuccessful bidder in a KenGen tender, sought review by the Public Procurement Administrative Review Board, which struck out the request because CFAO, a consortium member, disowned it. The appellant then filed judicial review proceedings in the High Court seeking certiorari and prohibition. When it emerged that the 45-day period prescribed by section 175(3) of the Public Procurement and Asset Disposal Act had expired, Ndungu, J. held the court lacked jurisdiction to continue and dismissed the application, with each party bearing its own costs. On appeal, the appellant argued that judicial review is now constitutionally underpinned and cannot be ousted by statute, that section 175(3) is an invalid ouster clause, and that the section had been declared unconstitutional in earlier High Court decisions. The respondents relied on consistent Court of Appeal authority upholding section 175, notably the Aprim Consultants and TSK Electronica decisions, and on the Supreme Court's holding that jurisdiction flows from the constitution or statute. The Court of Appeal framed a single determinative issue: whether the High Court retained jurisdiction after the 45 days expired. Following Aprim, it held that the jurisdiction was time-bound and ceased by effluxion of time, so any decision outside the period would be a nullity. It declined to depart from precedent absent an application for an expanded bench, affirmed the High Court judgment, dismissed the appeal with costs to the respondents, and also dismissed the associated rule 5(2)(b) injunction application with costs.

Key legal issues

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01

Whether the High Court retained jurisdiction after expiry of the 45-day period in section 175(3) PPAD Act

Holding

It did not; the jurisdiction was time-bound and ceased upon expiry of 45 days, rendering any decision outside the period a nullity.

Reasoning

The Court relied on its consistent precedent, notably the Aprim Consultants and TSK Electronica decisions, which construed section 175 as plain and unambiguous, setting strict sequential timelines for applicants, the High Court and the Court of Appeal. Parliament expressly enacted the consequence of default. The appellant had not denied responsibility for the delay, and no basis existed to depart from precedent without an application for an expanded bench.

02

Whether section 175 of the PPAD Act is an invalid ouster clause

Holding

The Court upheld the validity of section 175, following its consistent decisions, and declined to revisit the question.

Reasoning

The appellant argued that judicial review is now constitutionally underpinned and cannot be ousted, and that section 175 had been declared unconstitutional in earlier High Court decisions. The Court found these issues had already been considered and rejected in Aprim and TSK Electronica, and that departure from those decisions required a formal application for an expanded bench, which the appellant had not made.

p. 4

Legal principles established

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  • The High Court's jurisdiction under section 175(3) of the PPAD Act is time-bound and lapses by effluxion of time after 45 days; a decision rendered outside that period is a nullity.
  • A party seeking departure from consistent Court of Appeal precedent must move the Court in the normal way for an expanded bench.

Court orders

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  1. 1.Appeal dismissed with costs to the respondents
  2. 2.Application for injunction under rule 5(2)(b) dismissed with costs

Authorities

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Legislation

  • Public Procurement and Asset Disposal Actsection 175(3)
  • Public Procurement and Asset Disposal Actsection 175(4)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 201
  • Constitution of Kenya, 2010Article 221
  • Constitution of Kenya, 2010Article 227
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (9)

  • IEBC v. NASA & 6 Others
    [2017] eKLR

    Judicial review as a constitutionally underpinned remedy since the 2010 Constitution

  • Child Welfare Society of Kenya v. Republic ex parte Child in Family Focus Kenya
    [2017] eKLR

    Transformed constitutional nature of judicial review

  • Anisminic Ltd. v. Foreign Compensation Commission
    [1969] 1 All ER 208

    Supervisory power of the High Court may not be ousted

  • Nyakinyua & Kangei Framers Co Ltd v. Kariuki & Gathecha Resources Ltd (No.2)
    CA No. 16 of 1979

    Ouster clauses must be strictly construed

  • Republic v PPRAB & Another ex parte Kleen Homes Security Services Ltd
    [2017] eKLR

    Declaration that section 175 of the PPAD Act is unconstitutional

  • Republic v PPRAB ex parte Kenya Ports Authority Ltd & 2 Others
    [2017] eKLR

    Declaration that section 175 of the PPAD Act is unconstitutional

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

    Decision rendered outside section 175(3) timelines is a nullity; section 175 valid and mandatory

  • Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd
    [2012] eKLR

    Jurisdiction of a court flows from the constitution or statute

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

    Followed Aprim; section 175 timelines are cast in stone and cannot be varied

On appeal from
High Court of Kenya at Nairobi
Judicial Review Misc. Application No. 156 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court's judicial review decision under the Public Procurement and Asset Disposal Act (section 175(4) framework discussed)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Joint Venture of Lex Oilfield Solutions Ltd & CFAO Kenya Ltd v Public Procurement Administrative Review Board & 4 others", Case Analysis (2022). Civil Appeal 022 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/424/eng@2022-03-04

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