ELC Electroconsult SPA v Public Procurement Administrative Review Board & 3 others
The bottom line
#Kenya's Court of Appeal struck out a procurement appeal filed late, confirming that paying court fees counts as the filing date under strict procurement timelines.
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 filed within the seven (7) days prescribed under Section 175(4) of the Public Procurement and Assets Disposal Act, 2015
- 2.Whether, for purposes of Section 175(4), an appeal is signified by the filing of a notice of appeal or by the filing of the memorandum and record of appeal
Key legal issues
#When is an appeal under Section 175(4) of the Public Procurement and Assets Disposal Act deemed filed?
An appeal under Section 175(4) is filed when the memorandum and record of appeal is filed, not upon lodgement of a notice of appeal; the 45-day period for the Court's decision runs from that date.
The court adopted its reasoning in Aprim Consultants that Section 175's timelines are plain, unambiguous and sui generis. If a notice of appeal sufficed, the Court of Appeal Rules' 60-day record timeline would apply, making it impossible to decide the appeal within the statutory 45 days, defeating the statutory command. Section 5 of the Act resolves any conflict with the Rules in the Act's favour.
Whether lodgement of the record of appeal without payment of fees constitutes filing
Payment of prescribed court fees is an essential component of filing; the appeal was only deemed filed on 28th November 2025 when fees were paid, outside the seven days.
Relying on Tuv Austria Turk and the East African Court of Appeal precedent in Motel Schweitzer, the court reaffirmed that a document is duly filed only after lodgement and payment of fees. Although the record was uploaded on 27th November 2025, payment was made on 28th November 2025, which became the relevant filing date, exceeding the seven-day limit.
Whether Salat and Multichoice on notice-of-appeal filing apply to procurement appeals
Those decisions do not assist because procurement proceedings under the Act are sui generis and distinct from normal proceedings.
The court distinguished the appellant's authorities, holding that appeals under Section 175 are not ordinary appeals but a class of their own with strict, non-extendable statutory timelines that override the Court of Appeal Rules regime under which a notice of appeal initiates an ordinary appeal.
Legal principles established
#- For purposes of Section 175(4) of the Public Procurement and Assets Disposal Act, an appeal to the Court of Appeal is filed only when the memorandum and record of appeal is filed, and that is when the 45-day decision period begins to run.
- In procurement matters, the strict statutory timelines under Section 175 of the Act take precedence over the timelines in the Court of Appeal Rules.
- A document is deemed duly filed in court only upon lodgement at the registry and payment of the prescribed fees.
Court orders
#- 1.The Notice of Motion dated 4th December 2025 by the 2nd respondent succeeds
- 2.The appeal is struck out with costs to the 2nd respondent
- 3.The Registrar of the Court is directed to transmit a copy of the judgment to the Chairman of the Rules Committee
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCJR Case No. E323 of 2025
- Jurisdiction invoked
- Section 175(4) of the Public Procurement and Assets Disposal Act, 2015
Relief refused
#Hearing of the appeal on the merits
The appeal was filed out of time and was therefore incompetent, leaving no basis to consider the merits
Costs
The appeal is struck out with costs to the 2nd respondent.
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.
In our judgment, we pronounce that an appeal to this Court for purposes of Section 175(4) of the Act is filed when the memorandum and record of appeal is filed and that is when the 45 days within which the Court must make a decision begins to run.
In procurement matters, the strict statutory timelines under Section 175 of the Act take precedence over those in the Court of Appeal Rules.
Based on the foregoing, we uphold the contention by the 2nd respondent that this appeal was filed out of time and is, therefore, incompetent. Being of that view, we have no basis for considering the merits or otherwise of the appeal. Accordingly, the application dated 4th December 2025 succeeds and the appeal is hereby struck out with costs to the 2nd respondent.
The practice within our jurisdiction remains that a document is deemed as duly filed after a party has not only lodged it at the appropriate court registry but also paid the prescribed fees.
Issues in the judgment
#The judgment refers to the 2nd respondent's application as dated 4th December 2015 in one passage, an apparent typographical error for 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ELC Electroconsult SPA v Public Procurement Administrative Review Board & 3 others", Case Analysis (2025). Civil Appeal E1012 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2314/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.