Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Application E333 of 2021· [2022] KECA 605 (KLR)

Energy Sector Contractors Association v Accounting Officer, Kenya Electricity Transmission Company Limited & another

Court of Appeal
28 April 2022
1,578 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a single-judge ruling of the Court of Appeal (A.K. Murgor, JA) on a Notice of Motion dated 21 September 2021 by the Energy Sector Contractors Association seeking extension of time to lodge a Memorandum and Record of Appeal against the High Court's judgment of 9 July 2021 (Ngaah, J) in Judicial Review Application No. E071 of 2021, a procurement dispute concerning the interpretation of section 42 of the Public Procurement and Asset Disposal Act 2015. The 1st respondent opposed, arguing that section 175(4) of the PPADA requires procurement judicial review appeals to be filed within 7 days with no provision for extension, so the Court lacked jurisdiction or discretion under rule 4; it further contended the delay was inordinate and unproven, the appeal had no chance of success because the loan-funded procurement was exempt under section 42, and that extension would prejudice the public by delaying drawdown of an African Development Bank loan. The judge declined to determine the section 175 jurisdictional objection, holding it was beyond a single judge's remit. Applying the Leo Sila Mutiso principles, she found the Notice of appeal was filed within time, the record was lodged only two days late - a delay that was not inordinate - and that no prejudice arose on the section 175(4) basis since the application was brought under rule 4. Time was extended, the record to be filed under rule 82, with costs in the intended appeal. The application succeeded.

Key legal issues

#
01

Jurisdiction to extend time where PPADA prescribes short appeal timelines

Holding

The single judge declined to determine the section 175 objection, holding it was beyond her remit, and addressed the application as brought under rule 4

Reasoning

The respondent argued that section 175(4) PPADA fixes a 7-day appeal window with no extension power, ousting the Court's discretion. The judge held that whether section 175 rather than rule 4 governs is a matter beyond a single judge's remit, requiring determination by a full bench or another forum, and proceeded to decide the rule 4 application on its merits.

p. 2
02

Whether the delay of two days in lodging the record of appeal was inordinate

Holding

The delay was not inordinate and the discretion to extend time was exercised in the applicant's favour

Reasoning

The Notice of appeal was filed and served within time; the record was eventually lodged only two days late. Although the applicant produced no proof of failed e-filing attempts and the Registrar's email did not definitively confirm system problems, the short delay was held not inordinate, justifying extension of time.

p. 3
03

Whether the respondent would suffer prejudice if time was extended

Holding

No prejudice arose on the basis of section 175(4) PPADA because the application was brought under rule 4

Reasoning

The respondents claimed prejudice if extension was granted without regard to section 175(4) PPADA. The judge held that since the application was brought under rule 4 and not that provision, the question of prejudice on that basis did not arise at that juncture, leaving the section 175 issue open for the full Court.

p. 3

Legal principles established

#
  • Under rule 4 the Court has an unfettered but judicious discretion to extend time, guided by length of delay, reason for delay, chances of success and prejudice to the respondent

Court orders

#
  1. 1.Time extended for filing and service of the record of appeal
  2. 2.Memorandum and record of appeal to be lodged and served in accordance with rule 82 of the Court's rules
  3. 3.Costs in the intended appeal

Authorities

#

Legislation

  • Public Procurement and Asset Disposal Actsection 42
  • Public Procurement and Asset Disposal Actsection 175(4)
  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrules 20, 41, 43, 47, 75, 82

Cases cited (1)

  • Leo Sila Mutiso vs Rose Hellen Wangari Mwangi
    Civil Application No. Nai 251 of 1997

    Guiding principles for extension of time under rule 4: length of delay, reason, chances of success and prejudice

On appeal from
High Court, Commercial & Admiralty Division at Nairobi
Judicial Review Application No. E071 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time); intended appeal against High Court judicial review decision under the Public Procurement and Asset Disposal Act 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Energy Sector Contractors Association v Accounting Officer, Kenya Electricity Transmission Company Limited & another", Case Analysis (2022). Civil Application E333 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/605/eng@2022-04-28

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