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Court of AppealDismissedCertification Application arising from Civil Appeal judgment of March 4, 2022 (applicant's Notice of Motion dated March 7, 2022)

ADK Technologies Ltd in Consortium With Transnational Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 others (Civil Application E078 of 2022) [2023] KECA 1182 (KLR)

Court of Appeal
6 October 2023
1,409 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

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The Court of Appeal refused Ropat permission to appeal to the Supreme Court, confirming that Kenya's strict procurement appeal deadlines cannot be missed.

What this practically means

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Executive summary

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This was a certification application under Article 163(4)(b) of the Constitution arising from the Court of Appeal's judgment of March 4, 2022, which struck out the applicant's appeal for want of jurisdiction after it was lodged 191 days after the High Court's dismissal of its judicial review application, far outside the seven-day window in section 175 of the Public Procurement and Asset Disposal Act. The applicant sought certification of two issues as matters of general public importance: (i) from when the 45-day period under section 175(4) is computed, and (ii) whether one party to a consortium may unilaterally lodge a request for review, judicial review, or appeal. It also sought a stay of the striking-out judgment pending determination. Applying the Supreme Court's threshold in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the Court held the application fell short: the applicant pursued a private commercial deal that could not attract public interest; the first issue was a mundane point of law settled in a plethora of Court of Appeal decisions including Aprim Consultants; no conflicting decisions were demonstrated; and the second issue was never judicially determined since the Court had downed its tools for want of jurisdiction. The respondents further argued the Court could not stay its own orders. The application was dismissed with costs to the respondents. The Court regretted the delay in delivering the ruling, occasioned by inadvertent failure to diarize it. The certification refusal leaves intact the binding rule that section 175 PPAD Act timelines are mandatory and deprive the Court of Appeal of jurisdiction once expired.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the computation of 45 days provided under section 175(4) of the Public Procurement and Asset Disposal Act, 2015 starts from the date of filing the appeal or from the date of hearing of the appeal or any other time
  2. 2.Whether one party to a consortium agreement may lodge a request for review, file a Judicial Review and prefer an appeal if the other party is unwilling to do so
  3. 3.Whether these matters are of general public importance warranting certification for appeal to the Supreme Court under Article 163(4)(b)

Key legal issues

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01

Whether the two proposed issues are of general public importance under Article 163(4)(b)

Holding

The application failed the Steyn threshold; the applicant pursued a private commercial deal that did not go its way, which cannot attract public interest.

Reasoning

Applying the Supreme Court's principles in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, the court held that a failed private commercial tender dispute does not transcend the parties' circumstances. The first issue is a mundane point of law already settled in a plethora of Court of Appeal decisions, including Aprim Consultants. No conflicting decisions were demonstrated, and the second issue was never judicially determined since the court downed its tools for want of jurisdiction.

p. 4
02

Whether the second issue (one party to a consortium lodging review/appeal unilaterally) was open for certification

Holding

No, because the Court of Appeal did not pronounce itself on it, having declined jurisdiction.

Reasoning

A question of law must have arisen in the courts below and been the subject of judicial determination before certification can be granted. Here, the Court of Appeal in its judgment of March 4, 2022 held it lacked jurisdiction to hear the appeal, having been filed outside the mandatory seven-day window, and therefore made no determination on the consortium question. The respondents correctly noted there was nothing for the Supreme Court to consider on that issue.

p. 4

Legal principles established

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  • To certify a matter of general public importance for appeal to the Supreme Court under Article 163(4)(b), the intending appellant must satisfy the court that the issue transcends the circumstances of the particular case, has a significant bearing on the public interest, and arose and was determined in the courts below; a private commercial dispute and mundane points of law already settled do not qualify.
  • The strict timelines under section 175 of the PPAD Act are mandatory and, once expired, deprive the Court of Appeal of jurisdiction to hear a procurement appeal.

Court orders

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  1. 1.Certification for appeal to the Supreme Court refused
  2. 2.The application dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
Jurisdiction invoked
Article 163(4)(b) of the Constitution - certification that a matter of general public importance is involved

Relief refused

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Certification that the two identified matters are of general public importance and leave to appeal to the Supreme Court

The application does not meet the Steyn threshold: the applicant pursued a private commercial deal, the first issue is a mundane point of law already determined in a plethora of decisions, no conflicting decisions were shown, and the court never pronounced itself on the second issue for want of jurisdiction

p. 4

Suspension or stay of enforcement of the judgment of March 4, 2022 pending determination of the application

Respondents argued the Court has no jurisdiction to stay its own orders; such an application can only be entertained by the Supreme Court

p. 3

Costs

The application was dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all, we find this application unmeritorious. Consequently, we hereby dismiss it with costs to the respondents.
p. 4Disposition - certification application dismissed with costs
Firstly, the applicant was pursuing a private commercial deal that did not go its way. It is not the kind of matter that can attract public interest.
p. 4Private commercial disputes do not attain general public importance
These timelines are cast in stone and cannot be varied. The strict time frames under this section underscore the intention of Parliament to ensure disputes relating to Public Procurement and Asset disposal are disposed of expeditiously.
p. 2Mandatory statutory timelines under section 175 PPAD Act
Fourthly, as regards the second issue, this Court did not pronounce itself on the same, having simply downed its tools for want of jurisdiction.
p. 4Certification unavailable for issues not judicially determined below

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ADK Technologies Ltd in Consortium With Transnational Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 others (Civil Application E078 of 2022) [2023] KECA 1182 (KLR)", Case Analysis (2023). Certification Application arising from Civil Appeal judgment of March 4, 2022 (applicant's Notice of Motion dated March 7, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1182/eng@2023-10-06

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