Kenya Ports Authority & another v Kalmar Finland OY & 2 others (Civil Appeal E474 of 2026) [2026] KECA 1459 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a procurement appeal filed just one day late, confirming the 7-day PPADA deadline is absolute.
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 should be struck out for being filed out of time under section 175(4) of the PPADA
- 2.Whether rule 84 of the Court of Appeal Rules, 2022 can stop the running of the 7-day statutory timeline under section 175(4) of the PPADA
- 3.Whether the doctrines of lex non cogit ad impossibilia and actus curiae neminem gravabit can excuse late filing of a procurement appeal
Key legal issues
#Whether the appeal filed one day outside the 7-day statutory window under section 175(4) PPADA should be struck out
Yes. Filing fees were paid on 5th June 2026, one day after the 7-day period lapsed on 4th June 2026, ousting the Court's jurisdiction.
The Court accepted the computation that time started running on 29th May 2026 and lapsed on 4th June 2026. The record of appeal was rejected by the Deputy Registrar on 4th June and only approved and paid for on 5th June. Given the sui generis, time-bound nature of section 175(4) jurisdiction, filing outside the window automatically deprives the Court of jurisdiction, and the appeal is struck out.
Whether rule 84 of the Court of Appeal Rules, 2022 can stop the running of the statutory 7-day timeline
No. Appeals under section 175 PPADA are sui generis and the PPADA prevails over conflicting written law, including the Rules.
The Court reaffirmed prior decisions that procurement proceedings are sui generis and that section 5 of the PPADA provides that in case of conflict with any other law, the Act prevails. Accordingly, the Court of Appeal Rules cannot enlarge, abridge or suspend the statutory 7-day window, which speaks to the very jurisdiction of the Court.
Whether equitable doctrines (actus curiae neminem gravabit; lex non cogit ad impossibilia) can excuse late filing
No. Strict timelines exist so that jurisdiction is seized in the moment and lapse with the timeline.
The appellants relied on Indian authorities and a Kenyan High Court decision on the maxim that no act of the court should harm a litigant. The Court rejected the argument as skewed, holding that jurisdiction lapses with the lapse of the timeline, and noted the appellants did not demonstrate they put in all efforts, including physically visiting the court, to file within time.
Legal principles established
#- A document filed outside the 7-day window under section 175(4) PPADA automatically ousts the jurisdiction of the Court of Appeal in public procurement appeals; the timelines are cast in stone and cannot be varied or stopped by the Court of Appeal Rules.
- Appeals under section 175 of the PPADA are sui generis and rank above the Court of Appeal Rules; in case of conflict the PPADA prevails by dint of section 5.
Court orders
#- 1.The 1st respondent's notice of motion to strike out the appeal is allowed
- 2.The appellants' appeal is struck out
- 3.The cross-appeal also falls by the wayside (is struck out)
- 4.Each party to bear its own costs of the appeal and the cross-appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 175(4) of the Public Procurement and Asset Disposal Act (appeal against decision of the High Court in procurement matters)
Relief refused
#Appellants' request to have the appeal heard on its merits notwithstanding late filing
The 7-day timeline under section 175(4) PPADA is jurisdictional and lapsing of the timeline ousts the Court's jurisdiction; strict timelines in procurement appeals cannot be extended or stopped by the Court of Appeal Rules
Invocation of lex non cogit ad impossibilia / actus curiae neminem gravabit to excuse late filing
The maxim was rejected because the strict timeline exists to vest jurisdiction in the moment and the appellants did not demonstrate all efforts to file within time
Costs
Due to the peculiar circumstances of this matter, each party shall bear its own costs of the appeal and the cross-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.
It is, therefore, the finding of this Court that the application has merit and is hereby allowed. The appellant’s appeal is struck out. Naturally, it follows that the cross-appeal must also fall by the wayside. Due to the peculiar circumstances of this matter, each party shall bear its own costs of the appeal and the cross-appeal.
These timelines are cast in stone and cannot be varied. The strict time frames under this section underscore the intention of Parliament to ensure that disputes relating to Public Procurement and Assets Disposal are disposed of expeditiously.
a document filed outside the 7day window of appeal automatically ousts the jurisdiction of the court in public procurement appeals.
It bears repeating that procurement proceedings under the Act are sui generis and distinct from normal proceedings.
Issues in the judgment
#Internal inconsistency in the timeline of the request for typed proceedings: the replying affidavit is described as stating the letter was written on 4th June 2026, while later the Court records it as written on 3rd June 2026
The judgment states the record of appeal was filed on 4th June 2026, yet the appeal as a whole is found to have been lodged out of time on 5th June 2026; the filing/rejection/refiling sequence is not fully reconciled
The case title, appeal number and neutral citation are not stated in the provided judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority & another v Kalmar Finland OY & 2 others (Civil Appeal E474 of 2026) [2026] KECA 1459 (KLR)", Case Analysis (2026). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1459/eng@2026-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.