Principal Secretary/Accounting Officer Ministry of Defence & another v Public Procurement Administrative Review Board & another; Ministry of Gender, Culture, the Arts & Heritage (Interested Party) (Civil Appeal 198 of 2025) [2025] KECA 666 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the strict 14-day deadline to challenge procurement decisions cannot be extended, even over Christmas.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, in computing the 14 days prescribed under Section 175(1) of the Public Procurement and Asset Disposal Act, regard should be had to Order 50 Rule 4 of the Civil Procedure Rules to exclude the Christmas recess
- 2.Whether Section 57 of the Interpretation and General Provisions Act (Cap 2) justifies an extension of the statutory 14-day period
- 3.Whether the learned Judge erred in awarding costs to the 2nd respondent
Key legal issues
#Whether Order 50 Rule 4 of the Civil Procedure Rules (exclusion of Christmas recess) applies to the 14-day judicial review window under Section 175(1) of the Act
It does not. Order 50 Rule 4 applies only to computing time under the Civil Procedure Rules or by order of the court, and subordinate legislation cannot enlarge time limited by statute.
The Court relied on Maersk Kenya Limited v Murabu Chaka Zuma, where it held that Order 50 Rule 4 applies specifically to computing time under the Civil Procedure Rules or by court order, and on Republic v PPARB ex-parte TSC citing Mokombo Ole Simel, which held that delegated legislation cannot supersede the express provisions of an Act. The statutory 14-day window therefore ran without exclusion of the Christmas recess, and the application filed on 14th January 2025 was out of time.
Whether Section 57 of the Interpretation and General Provisions Act (Cap 2) justifies excluding the recess from the statutory computation
No. Section 5(1) of the Public Procurement and Asset Disposal Act provides that the Act prevails over any inconsistent legislation in matters of procurement, so Section 175(1) prevails.
Counsel for the appellants invoked Section 57 of Cap 2 to argue for a holistic interpretation avoiding absurd results. The Court held that Section 5(1) of the Act expressly states the Act shall prevail in case of any inconsistency with any other legislation or government notices or circulars in matters relating to procurement and asset disposal. Accordingly Section 175(1) governs and the time bar stands.
Whether the timelines in Section 175 of the Act are mandatory
Yes. Consistent with Aprim Consultants, Al Ghurair, ADK Technologies, The Consortium of TSK Electronica and Kenya Ports Authority, the timelines are cast in stone and Parliament expressly enacted finality as the consequence of default.
The Court reviewed its own precedents construing Section 175, noting Parliament's intention to constrict the time for public procurement disputes and to shut out all discretion by providing that the Review Board's decision crystallises with finality on default. The five-judge bench in Kenya Ports Authority also upheld the constitutionality of the prescribed timelines as consistent with the guarantee that justice shall not be delayed.
Whether the award of costs to the 2nd respondent by the High Court should be disturbed
No. Costs follow the event and the appellants did not show a wrong exercise of judicial discretion.
The Court reiterated the established principle that costs are in the discretion of the court and normally follow the event. Since the appellants failed to demonstrate that the Judge's award of costs amounted to a wrong exercise of that discretion, the Court had no basis to interfere, and it likewise dismissed the appeal with costs to the 2nd respondent.
Legal principles established
#- The 14-day period in Section 175(1) of the Public Procurement and Asset Disposal Act for seeking judicial review of a Review Board decision is mandatory and cannot be enlarged by Order 50 Rule 4 of the Civil Procedure Rules or by Section 57 of the Interpretation and General Provisions Act; the Act prevails over other legislation in matters of procurement.
- Subordinate legislation (rules of court) cannot extend or supersede a time limit prescribed by an Act of Parliament.
- Where the Review Board's decision is rendered on 23rd December, the 14 days under Section 175(1) run to 6th January; the Christmas recess is not excluded from the computation.
Court orders
#- 1.The appeal is dismissed
- 2.The appellants to pay costs of the appeal to the 2nd respondent only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- judicial review application dated 17th January 2025 (number not stated)
- Jurisdiction invoked
- First appeal / appeal against ruling of the High Court in judicial review proceedings (Section 175 of the Public Procurement and Asset Disposal Act framework); specific constitutional or statutory basis not stated in the judgment
Relief refused
#Appellants' prayer to allow the appeal and remit the judicial review application to the High Court for determination on the merits
The application for judicial review was filed out of time under Section 175(1) of the Act; Order 50 Rule 4 of the Civil Procedure Rules cannot enlarge a time limit set by statute
Interference with the High Court's award of costs
Costs follow the event and the appellants did not demonstrate a wrong exercise of judicial discretion
Costs
The appeal was dismissed with costs to the 2nd respondent only, being the only party that opposed the appeal.
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.
The same applies equally to the matter at hand. Order 50 Rule 4 of the Civil Procedure Rules is not available to enlarge time limited by statute.
In effect, Section 175(1) of the Act prevails. Based on the foregoing, the learned Judge was right that the appellants’ action was time barred and the decision to strike out the same is sound in law and cannot be faulted.
The result is that the appeal fails. It is accordingly dismissed with costs to the 2nd respondent only being the only party that opposed the appeal.
Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and he invested with finality.
It is established that costs are in the discretion of the Court and normally follow the event.
Issues in the judgment
#The Act is referred to inconsistently as 'Public Procurement and Disposal Act' in paragraph 1 and 'Public Procurement and Asset Disposal Act' elsewhere in the judgment
The memorandum of appeal sets out five grounds, but the judgment identifies only one substantive issue (computation of the 14 days) plus costs; the other grounds are not separately addressed
The judgment refers to the Review Board and an interested party at the hearing, but the interested party is never named in the parties or the body of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Principal Secretary/Accounting Officer Ministry of Defence & another v Public Procurement Administrative Review Board & another; Ministry of Gender, Culture, the Arts & Heritage (Interested Party) (Civil Appeal 198 of 2025) [2025] KECA 666 (KLR)", Case Analysis (2025). Court of Appeal Appeal (Nairobi) (judgment does not state appeal number). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/666/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.