Okoth and Kiplagat Advocates v Procurement Administrative Review Board & 3 others (Civil Appeal E401 of 2026) [2026] KECA 1212 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a law firm's procurement challenge, confirming that contract execution during judicial review is lawful because section 175 has no automatic standstill.
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 is competent in light of the timelines prescribed under section 175(4) of the Act
- 2.Whether the learned Judge erred in restricting judicial review to procedural review and thereby failed to engage with the Appellant's legality challenge
- 3.Whether the Review Board unlawfully rewrote the Tender Document by treating individual advocate experience as firm experience
- 4.Whether the contract was unlawfully executed during the statutory challenge period under section 175 of the Act
- 5.Whether the learned Judge improperly relied on public interest and the ongoing arbitration proceedings to sustain an allegedly unlawful procurement process
Key legal issues
#Competence of the appeal under section 175(4)
The preliminary objection failed because the record did not establish with sufficient certainty that the delay was attributable to the appellant rather than to e-filing system failures.
The Court accepted the settled principle that section 175 timelines are strict and jurisdictional, citing Aprim Consultants and ELC Electroconsult. However, on the affidavit of Dr. Kenneth Kiplagat and registry correspondence, the Court could not conclusively attribute the delay to the appellant. Resolving the factual uncertainty on an incomplete record would be unjust; the objection was declined without diluting the strict-timeline doctrine.
Scope of judicial review under section 175 of the Act
Procurement judicial review under section 175 is sui generis constitutional judicial review: it may engage the substance of a decision, but only to determine legality, not correctness. The learned Judge framed the inquiry too narrowly.
Relying on Suchan, Saisi and Dande, the Court held that constitutionalized judicial review may extend to substance where necessary to test legality. Procurement litigation is neither Order 53 review nor ordinary constitutional petition but a statutory form situated in a constitutionalized framework under Article 227. Allegations of altered or undisclosed criteria cannot be tested by procedure alone; the court asked 'why' substance was examined, not 'whether'.
Whether the Review Board rewrote the Tender Document
The Board's interpretation - that experience acquired by a partner remains available to the firm through which the partner presently practises - was a rational, legally permissible interpretation of an undefined criterion, not an alteration of the tender criteria.
The Tender Document did not define 'Specific Experience of the Firm'. The Board's reading was grounded in the criterion's language, consistent with the commercial realities of legal practice, did not render the firm/advocate distinction meaningless, and introduced no external factor. A law firm's principal asset is its lawyers' expertise; every procurement involves interpretation, and disagreement with a permissible interpretation is not illegality.
Execution of the contract during challenge proceedings
No automatic standstill arises on filing judicial review under section 175; absent a statutory prohibition or subsisting court order, contract execution gave no independent ground of intervention.
Section 168 expressly triggers an automatic standstill for Review Board proceedings, whereas section 175 contains no equivalent language, indicating Parliament did not intend automatic suspension upon filing judicial review. A contrary construction would let every disappointed bidder freeze procurement merely by filing suit, contrary to the statutory objective of expedition and finality.
Public interest and the ongoing arbitration
Public interest cannot sanitize illegality, but it is relevant only to remedy after illegality is found; since none was established, the issue was moot.
The Court agreed as a matter of principle that public interest cannot shield unlawful conduct and that constitutional compliance does not yield to administrative convenience. However, public law remedies are discretionary and may consider the stage reached by the process and consequences of disruption. The learned Judge did not hold that public interest cured illegality, and no illegality having been found, no remedial question arose.
Legal principles established
#- Judicial review under section 175(1) of the Public Procurement and Asset Disposal Act is sui generis constitutional judicial review permitting limited examination of the substance of a procurement decision where necessary to determine legality, but it does not convert the proceedings into an appeal on correctness.
- The legality threshold in tender-criterion challenges is crossed only where the interpretation adopted effectively amounts to creation of a new criterion; a rational interpretation of an undefined criterion within the tender framework is lawful even if not the only available one.
- The filing of judicial review proceedings under section 175 does not automatically suspend implementation of a procurement decision; an automatic standstill applies only under section 168 before the Review Board or where a court grants interim relief.
- The strict and jurisdictional timelines in section 175 of the Act remain undiluted, but where there remains a plausible and unrefuted contention that apparent delay was caused by the court's own e-filing infrastructure, the jurisdictional objection cannot be upheld on the record as it stands.
Court orders
#- 1.The appeal is dismissed
- 2.The judgment of the High Court (T.W. Ouya, J.) delivered on 4th May, 2026 in Judicial Review Application No. E078 of 2026 is affirmed
- 3.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Milimani
- Judicial Review Application No. E078 of 2026
- Jurisdiction invoked
- First appeal against the High Court's determination of judicial review under section 175(1) of the Public Procurement and Asset Disposal Act; appeal to the Court of Appeal under section 175(4) of the Act
Relief refused
#Quashing/setting aside the decision of the Review Board
The Review Board's interpretation of the criterion was reasonably open to it and did not amount to alteration of the Tender Document
Nullification of the contract executed between the National Treasury and the 4th Respondent
No operative statutory prohibition or subsisting court order was violated, since section 175 contains no automatic standstill
Relief premised on public interest in the ongoing arbitration
Public interest is relevant only after a finding of illegality, and no illegality was established
Costs
Each party shall bear its own costs of 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.
Properly understood, judicial review under section 175 of the Act is a sui generis species of constitutional judicial review.
The inquiry remains one of legality because the court's concern is not whether the decision-maker arrived at the correct result, but whether it acted within the limits imposed by law.
the legality threshold is crossed only where the interpretation adopted is so disconnected from the language, purpose or structure of the Tender Document that it efiectively amounts to creation of a new criterion.
Where Parliament intended an automatic standstill, it said so expressly.
In the result, and for the reasons we have given, we find no basis upon which to interfere with the judgment of the High Court. Accordingly, this appeal is hereby dismissed.
we direct that each party shall bear its own costs of the appeal.
Issues in the judgment
#Aprim Consultants and ELC Electroconsult are cited by counsel and initially discussed as party submissions, but the Court later expressly endorses and follows their principles; treatment field reflects both the party citation and the court's endorsement of their ratio
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoth and Kiplagat Advocates v Procurement Administrative Review Board & 3 others (Civil Appeal E401 of 2026) [2026] KECA 1212 (KLR)", Case Analysis (2026). Court of Appeal appeal from Milimani High Court Judicial Review Application No. E078 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1212/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.