Sharpcut Designers Ltd v Public Procurement Administrative Review Board & 2 others (Civil Appeal E273 of 2025) (20 June 2025) (Reasons) [2025] KECA 1132 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a procurement appeal filed late, confirming that the 45-day statutory deadline under the Public Procurement and Asset Disposal Act cannot be extended.
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 appeal was time-barred under section 175 of the Public Procurement and Asset Disposal Act
- 2.Whether the learned Judge misdirected himself in arriving at the conclusion he reached
Key legal issues
#Whether the appeal was time-barred under section 175(4) of the PP&AD Act
The appeal was time-barred. The 7-day filing period ran from the High Court judgment of 13th September 2024, and the 45-day decision period lapsed; the Court's later ruling admitting the record could not extend the statutory timeline.
The Court adopted its prior interpretation that section 175 is plain, unambiguous and mandatory, depriving the Court of discretion to enlarge time. Section 175(5) took effect upon lapse of the 45 days from 20th September 2024. Even though the delay was largely occasioned by the Court's own rejection of the record, the Court's hands were tied by the statute; the ruling of 7th April 2025 merely granted leave to upload a properly marked record and did not extend the timeline.
Whether the learned Judge misdirected himself in upholding the disqualification of the appellant's bid
Even if the appeal had been properly before the Court, it would have been dismissed; the High Court and the Review Board correctly understood the applicable law and the decision was not irrational.
The Court held that every tender is determined within its own provisions and the procuring entity designs its own terms. Judicial review is confined to the fairness of the process, not a qualitative re-examination of the tender evaluation. Form 3.2 was a mandatory requirement, the appellant's failure to complete it warranted disqualification, and the procuring entity had discretion, not obligation, to seek clarifications. The decision under review was not so outrageous in its defiance of logic as to warrant interference.
Whether the Court should determine the merits despite mootness
Although the time-bar finding rendered the merits moot, the Court exercised its discretion to state its views for academic and guidance purposes.
Relying on Redhill Heights Investments Limited v Suzanne Achieng Butler, the Court noted that a finding of mootness ordinarily deprives the Court of jurisdiction, but the Court retains discretion to decide otherwise moot cases where formulation of controlling legal principles would guide the bench, the bar and the public. The parties had fully addressed the Court on the merits, so the Court rendered itself while acknowledging no live controversy remained.
Legal principles established
#- Section 175 of the PP&AD Act is couched in mandatory terms and leaves the Court of Appeal no discretion to enlarge the statutory timelines; failure to decide within 45 days renders the Review Board's decision final and binding under section 175(5).
- A bid must be considered responsive or otherwise within the express provisions of the terms of the tender; the procuring entity retains the discretion to determine mandatory terms and whether to seek clarifications.
- On judicial review of procurement decisions, the High Court's duty is limited to the fairness of the decision-making process and does not extend to re-determining the merits or the terms of the tender.
Court orders
#- 1.The appeal is struck out for offending section 175(4) of the PP&AD Act
- 2.The 2nd and 3rd respondents shall have the costs of the appeal from the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Judicial Review No. 171 of 2024
- Jurisdiction invoked
- Section 175(4) of the Public Procurement and Asset Disposal Act, 2015 (appeal from High Court judicial review of Review Board decision)
Relief refused
#Allowance of the appeal and interference with the High Court's discretionary judgment upholding disqualification of the appellant's bid
The appeal was time-barred under section 175(4) of the PP&AD Act, which leaves the Court no discretion to enlarge time; and on the merits the Court would in any event have affirmed the High Court
Costs
The 2nd and 3rd respondents shall have the costs of the appeal from the appellant.
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.
Consequently, the appeal is struck out for reasons that it ofiends section 175(4) of the PP&AD Act. As earlier decided, the 2nd and 3rd respondents shall have the costs of the appeal from the appellant.
we do not possess the discretion to extend the timelines as is beseeched of us by the appellant.
The obligation to determine what is mandatory and its importance in the tendering process remains with the tendering entity.
The concern of a review court should strictly concern the fairness of the process as opposed to overreaching and re-determining the terms of the tender.
we fail to find the decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
Issues in the judgment
#The judgment inconsistently numbers the respondents: the coram lists Credible Technical Works Ltd as 2nd respondent and the Managing Director of Kenya Power as 3rd respondent, but the narrative describes Kenya Power's Managing Director as 'the 2nd respondent in this appeal' and Credible Technical Works Ltd as 'the 3rd respondent'.
The quoted excerpt from SGS Kenya Limited v Energy Regulatory Commission repeats the paragraph number 43 twice in the block quotation.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Ports Authority & another v Kalmar Finland OY & 2 others (Civil Appeal E474 of 2026) [2026] KECA 1459 (KLR)[2026] KECA 1459 (KLR)17 Jul 2026
- Sintecnica Engineering S.R.L In Joint Venture With Steam S.R.L v Accounting Officer, Kenya Electricity Generating Company PLC (KENGEN) & 4 others (Civil Appeal E317 of 2026) (26 June 2026) (Reasons) [2026] KECA 1214 (KLR)[2026] KECA 1214 (KLR)26 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Sharpcut Designers Ltd v Public Procurement Administrative Review Board & 2 others (Civil Appeal E273 of 2025) (20 June 2025) (Reasons) [2025] KECA 1132 (KLR)", Case Analysis (2025). Civil Appeal E273 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1132/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.