Galana Oil Kenya Limited v Rubis Energy Kenya PLC & another (Civil Appeal E066 of 2023) [2023] KECA 372 (KLR)

Court of Appeal

31 March 2023

HOH. A. Omondi KLDr. K. I. Laibuta ALAli-Aroni

1,259 words in judgment

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The bottom line

Kenya's Court of Appeal struck out the Review Board's appeal as moot because it had already complied with the High Court's bias ruling and issued a fresh procurement decision.

What this practically means

Executive summary

The Public Procurement Administrative Review Board appealed against a High Court judgment of February 3, 2023 (Jairus Ngaah, J) which quashed the Board's decision of December 22, 2022 in a procurement review concerning the supply and delivery of low sulphur diesel to Kenya Power and Lighting Company. The High Court found that the chairperson of the Board, who presided over the review, was the managing partner of a firm of advocates whose clients included the procuring entity, a fact not controverted, and that she failed to declare her interest as required by Regulation 212 of the PPAD Regulations 2020, vitiating the decision for illegality and procedural impropriety. The trial court quashed the decision and directed the Board to reconsider the review afresh, excluding the chairperson. Before the Court of Appeal, the respondent argued the appeal was otiose and moot because the Board had complied with the judgment and published a fresh decision on February 23, 2023. The appellant conceded compliance but contended that the certiorari issue remained alive. The Court, applying the definition of mootness adopted in Okiya Omtatah Okoiti and Daniel Kaminja, held the appeal incompetent. It declined to entertain the chairperson's position, noting she had an opportunity to be enjoined earlier but defended herself through a proxy. The Court struck out the appeal with costs to the 1st respondent, leaving the High Court judgment undisturbed.

Key legal issues

Mootness of an appeal where the judgment below has been fully complied with

Holding

The appeal was moot and incompetent because the Board had complied with the High Court judgment, reconsidered the review afresh and published its decision on February 23, 2023

Reasoning

The Court adopted the definition of a moot case as one in which the controversy no longer exists. It was not in contention that the Board had complied with the judgment and re-heard the request for review, excluding the impugned chairperson. The appellant's concession that the Board had given effect to the orders could not revive the controversy, so the appeal was struck out.

p. 3

Whether a party adversely mentioned but not formally enjoined can complain of lack of a hearing at the appellate stage

Holding

The Court declined to entertain the chairperson's position because she had an earlier opportunity to be enjoined but instead defended her position through a proxy

Reasoning

Although the chairperson of the Board was not a party to the suit and sought to introduce new evidence at the appellate stage, the Court held she could not complain at that late stage. She had the chance to request to be enjoined earlier and chose to defend herself through a proxy, so she could not 'cry wolf' at the appellate stage.

p. 3

Legal principles established

An appeal that has been overtaken by events, where the decision appealed from has already been fully implemented, is moot and incompetent and will be struck out
A party who had an opportunity to be enjoined in proceedings earlier but instead used a proxy to defend their position cannot complain of not having been heard at the appellate stage

Court orders

1.The appeal is found to be incompetent and is struck out
2.Costs of the appeal awarded to the 1st respondent

Authorities

Legislation

Public Procurement and Asset Disposal RegulationsRegulation 212

Cases cited (3)

Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others
[2020] eKLR
Daniel Kaminja & 3 Others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi
[2019] eKLR
National Assembly of Kenya & Another v Institute for Social Accountability & 6 Others
[2017] eKLR

On appeal from: High Court of Kenya; Not stated in the judgment
Jurisdiction invoked: Not expressly stated in the judgment; appeal from the High Court under the Court of Appeal's appellate jurisdiction

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Galana Oil Kenya Limited v Rubis Energy Kenya PLC & another (Civil Appeal E066 of 2023) [2023] KECA 372 (KLR)", Case Analysis (2023). Civil Appeal No E066 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/372/eng@2023-03-31

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