Kenya Ports Authority v Public Procurement Administrative Review Board & 2 others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that procurement appeals must be filed and decided within strict 45-day deadlines, or they die — no exceptions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court should overrule its decision in Aprim Consultants v Parliamentary Service Commission upholding the validity of section 175(3) and (5) of the Public Procurement and Asset Disposal Act
- 2.Whether the High Court's earlier declaration that section 175(3) and (5) of the Act was unconstitutional is sound enough to justify departing from the Aprim case
- 3.Whether KPA's appeal, filed and the impugned judgment rendered outside the statutory timelines, is competent if Aprim remains good law
Key legal issues
#Whether the Court should depart from the Aprim decision upholding section 175(3) and (5) of the PPAD Act
The Court declined to depart from Aprim; the timelines and the consequence of finality on default are valid.
The Court found the High Court's declaration of unconstitutionality procedurally infirm (no such prayer in the leave application or notice of motion) and substantively flawed because the judge never applied the article 24 limitation test. Statutory timelines are a recognised, legitimate legislative device, echoed in constitutional election timelines and endorsed by the Supreme Court. The EACJ's Karua decision did not hold timelines unconstitutional.
Whether section 175(3) and (5) is an unconstitutional ouster clause
Strictly speaking it is not a traditional ouster clause; it recognises jurisdiction but sets a time limit, which is constitutionally unobjectionable.
An ouster clause excludes jurisdiction altogether; section 175(3) and (5) acknowledges the jurisdiction of the High Court and Court of Appeal while prescribing timelines. In a constitutional order guaranteeing that justice shall not be delayed (article 159(2)(b)), timelines serve rather than violate access to justice. Comparable timelines exist in articles 140(2) and 105(2) and the Elections Act.
Whether the High Court could declare section 175(3) and (5) unconstitutional within the judicial review proceedings
No. KPA restricted itself to order 53 remedies for which leave was granted; a constitutional declaration required a petition or a properly founded application.
Relying on the Supreme Court's decision in Dande on the dual approach to judicial review, the Court held that the remedy available is determined by the pleadings and procedure adopted. KPA sought only certiorari under order 53; the additional prayer for reasons was not in the leave application, and a separate application for a constitutional declaration could not be engrafted onto the judicial review application without leave to amend.
Whether the High Court's failure to apply the article 24 limitation-of-rights test vitiated its declaration
Yes; the declaration is of doubtful authority because the judge never conducted the proportionality analysis required by article 24.
Before finding a limitation on access to justice and fair hearing unjustified, the Court was obliged to assess reasonableness and justifiability: the nature of the right, the importance and extent of the limitation, the balance struck, and less restrictive means. The judge treated the provision as a classical ouster clause without this analysis, which the appellate court found fatal to the declaration's authority.
Legal principles established
#- Statutory timelines within which courts must determine public procurement disputes, with a consequence of finality on default, are valid and not unconstitutional merely because they restrict the time for adjudication.
- A High Court decision that did not apply the article 24 limitation-of-rights analysis cannot be used to upset a binding decision of the Court of Appeal; the appellate court must satisfy itself of its correctness.
- A court cannot determine the constitutionality of a statutory provision in a judicial review application confined to remedies the applicant sought leave for under order 53; constitutional challenges require a petition or a properly amended/pindependent application.
- The Court of Appeal's decision in Aprim on the validity of section 175(3) and (5) of the Public Procurement and Asset Disposal Act remains binding and a judgment rendered outside the statutory 45-day timeline is a nullity.
Court orders
#- 1.The Court declined to depart from its decision in Aprim Consultants v Parliamentary Service Commission
- 2.The appeal was struck out with no orders on costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Judicial Review Application No 525 of 2016
- Jurisdiction invoked
- Court of Appeal Rules, rule 29 (expanded uneven bench empanelled by the President of the court to consider departing from Aprim); appeal under section 175(4) of the Public Procurement and Asset Disposal Act
Relief refused
#KPA's request that the Court overrule the Aprim case as bad law (per incuriam)
The High Court declaration of unconstitutionality was procedurally flawed: no prayer for it was in the leave application, and the judge never applied the article 24 limitation-of-rights test; the Court found the declaration of doubtful authority
KPA's appeal on the merits
KPA conceded that the High Court judgment was rendered outside the prescribed 45 days and its appeal was filed outside the prescribed time, rendering it incompetent while Aprim stands
Costs
No orders on costs - the appeal was struck out with no orders on costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As KPA readily concedes that the judgment impugned in this appeal was rendered outside the time prescribed by the Act and that, so long as the Aprim case is good law, the appeal is incompetent for the additional reason that it was filed outside the prescribed time, this appeal is hereby struck out with no orders on costs. It is so ordered.
we are not persuaded that there is any good reason to depart from the decision of this court in the Aprim case. If anything, we find that the decision of the High Court dated June 28, 2018 in JR APP No 525 of 2016, as far as the constitutionality of section 175(3) and (5) of the Act is concerned, is of doubtful authority.
it is not readily apparent to us how a clause that seeks to ensure disputes touching on a critical aspect of the national economy are resolved within stipulated time, can be said to be unconstitutional.
A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules.
we cannot take the said decision of the High Court on face value; we must interrogate the decision and satisfy ourselves that it passes muster to upend a decision of this court.
Issues in the judgment
#The judgment gives conflicting dates for the High Court judgment: it is described as 'dated June 28, 2017' earlier in the judgment but as 'dated June 28, 2018' in the concluding passage.
The case number is not stated in the judgment itself; only the underlying High Court Judicial Review Application No 525 of 2016 is identified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Public Procurement Administrative Review Board & 2 others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR)", Case Analysis (2024). Civil Appeal (from High Court Judicial Review Application No 525 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1099/eng@2024-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.