Keller Customs Kenya Limited v Public Procurement Administrative Review Board & 3 others
The bottom line
#Kenya's Court of Appeal refused to block a KPA tender award and declined to certify a Supreme Court appeal, confirming it loses power to grant relief after final judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal has jurisdiction to grant an injunction pending an intended appeal to the Supreme Court after it has delivered its final judgment
It does not. The Court becomes functus officio upon delivery of final judgment, and neither the inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act nor Rule 5(2)(b) of the Court of Appeal Rules authorises post-judgment interlocutory relief; only certification under Article 163(4) remains.
The Court relied on its prior decisions in Mukesh Kumar Kantilal Patel v Charles Langat and Dickson Muricho Muriuki v Timothy Kagondu Muriuki, holding that Rule 5(2)(b) relief applies strictly to matters yet to be heard and determined with finality. The functus officio principle, grounded in public policy favouring finality of proceedings, prevents the Court from revisiting final orders merely because a party intends to appeal to the Supreme Court. Inherent jurisdiction cannot extend jurisdiction beyond the constitutional or statutory mandate.
Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4) of the Constitution
It does not. The issues regarding the Board's jurisdiction to declare the Fourteenth Schedule form at variance with section 170 of the Public Procurement and Asset Disposal Act are new issues never pleaded or determined below, and the remaining issues relate to a purely private procurement dispute.
Applying the Steyn criteria, the Court found the Applicant identified no uncertainty in the law, no contradictory precedents, and no substantial novel point of law arising from the impugned judgment. The Applicant provided no evidence of similarly affected litigants. The grievances concerned the specific procurement and review procedures in a private tender dispute, so the intended appeal did not transcend the parties' circumstances; the Applicant was merely seeking to relitigate its losing position.
Legal principles established
#- The inherent jurisdiction of the Court of Appeal under sections 3A and 3B of the Appellate Jurisdiction Act cannot be used to extend the Court's jurisdiction beyond its constitutional or statutory mandate.
- Once the Court of Appeal has delivered its final judgment in an appeal, it becomes functus officio and has no jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules to grant a stay of execution or injunction pending an intended appeal to the Supreme Court; its only remaining function in relation to a further appeal is certification under Article 163(4) of the Constitution.
- Rule 5(2)(b) of the Court of Appeal Rules confers power to hear interlocutory applications pending the hearing and determination of the main appeal, and does not confer power to entertain any application on the merits of a suit after judgment.
- A matter of general public importance warranting certification under Article 163(4) must transcend the circumstances of the particular case, raise a substantial point of law bearing on the public interest, and arise from issues already judicially determined in the courts below; mere dissatisfaction with the outcome is not a basis for certification.
Court orders
#- 1.The Applicant's Notice of Motion application dated 28th February 2025 is dismissed
- 2.Costs of the application awarded to the 1st and 2nd Respondents
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules; Article 163(4) of the Constitution (certification of appeals to the Supreme Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keller Customs Kenya Limited v Public Procurement Administrative Review Board & 3 others", Case Analysis (2026). Civil Application E001 of 2025 (ruling on Notice of Motion dated 28th February 2025 in Civil Appeal E001 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/237/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.