Energy Sector Contractors' Association v Accounting Officer, Kenya Electricity Transmission Company Limited & another
The bottom line
#Kenya's Court of Appeal confirmed that procurement appeals must be filed within seven days, and late appeals are dead on arrival.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court could entertain an appeal filed out of the seven-day period prescribed by section 175(4) of the PPAD Act
The Court had no jurisdiction; the statutory timelines are mandatory and cannot be extended under Rule 4 of the Court's Rules, so the appeal was struck out.
Following Aprim, TSK Electronica and ADK Technologies, section 175(4) is couched in mandatory terms with no discretion for extension. The appellant filed its Memorandum and Record of Appeal 58 days after the Notice of Appeal, outside the statutory window. By the time of the attempted filing the 45-day period for determining the appeal had lapsed. Jurisdiction flows from the Constitution and statute and cannot be conferred by judicial craft or the Court's own Rules.
Whether the single judge's ruling of 28th April 2022 extending time under Rule 4 bound this full bench
The extension could not stand because the Court's Rules cannot confer jurisdiction that the parent statute withholds; the assumption of 60 days under Rule 82 cannot stand.
The full Court held that the single judge had expressly declined to determine the section 175 issue, addressing only the Rule 4 application. Since jurisdiction is conferred by the Constitution or written law, a Rule 4 extension cannot override the statutory ouster. The prior direction to file within 60 days under Rule 82 was therefore of no effect in a procurement appeal governed by section 175(4).
Legal principles established
#- Appeals to the Court of Appeal in judicial review matters under the PPAD Act are not subject to extension of time under the Court's Rules; failure to appeal within seven days under section 175(4) renders the High Court decision final and strips the Court of jurisdiction.
- A decision made without jurisdiction is of no legal effect and cannot be cured by Article 159(2)(d) of the Constitution or the court's inherent jurisdiction.
Court orders
#- 1.The appeal is struck out
- 2.The Appellant shall bear the 1st Respondent's costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi, Judicial Review Division
- Judicial Review Application No. E071 of 2021
- Jurisdiction invoked
- Section 175(4) of the Public Procurement and Asset Disposal Act, 2015 (appeal from High Court judicial review of Review Board decision)
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 Appeal E387 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/976/eng@2022-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.