TUV Austria Turk v Public Procurement Administrative Review Board & 3 others
The bottom line
#The Court of Appeal refused to let TUV Austria Turk take its procurement appeal to the Supreme Court, ruling the issue was not important enough for Kenya's highest court.
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 applicant has demonstrated that its case involves a matter of general public importance to merit certification by this Court to appeal to the Supreme Court under Article 163(4)(b) of the Constitution
Key legal issues
#Whether the intended appeal raises a matter of general public importance under Article 163(4)(b)
No. The issue the applicant seeks to argue before the Supreme Court - whether documents should be lodged within official working hours - was not what this Court determined; the appeal was struck out because filing fees were paid late, deeming the appeal filed on 12th August 2025, outside the seven-day period in section 175(4) of the Public Procurement and Asset Disposal Act.
The Court examined its own prior judgment and found the dispositive ground was late payment of fees, not lodging outside working hours. The deeming of the filing date by late fee payment occasioned the striking out. The question of when documents are deemed filed predates e-filing and is settled, not novel. Certification requires a substantial point of law with significant bearing on public interest that arose and was determined below; that threshold was not met, so the application failed.
Whether there exist contradictory decisions of this Court on computation of time requiring Supreme Court resolution
The respondents contended, and the Court's analysis implies, that the law on computation of time is settled; the applicant failed to demonstrate uncertainty warranting certification.
The applicant argued that Court of Appeal and High Court decisions on when time starts and ends in the e-filing era are inconsistent. The respondents cited authorities holding the filing deadline is 11:59pm standard Kenya time and that time starts running a day after judgment. The Court did not accept that a state of uncertainty existed; in any event, the point actually determined below concerned fee payment, not working hours, so no certifiable question arose.
Legal principles established
#- Certification under Article 163(4)(b) is a filtering process reserved for exceptional cases raising cardinal issues of law or jurisprudential moment; the burden lies on the applicant to show the matter transcends the parties' litigation interests and bears on public interest
- A point of law sought to be certified must have arisen and been the subject of judicial determination in the courts below; an issue not actually determined cannot ground certification
Court orders
#- 1.The applicant's Notice of Motion dated 2nd October 2025 is dismissed with costs to the 2nd, 3rd and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court
- Judicial review application (judgment 4th August 2025)
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Section 15B(2) of the Supreme Court Act; Rule 33(1) of the Supreme Court Rules; Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 42 of the Court of Appeal Rules
Relief refused
#Certification that the intended appeal to the Supreme Court raises a matter of general public importance and leave to lodge such appeal
The issue the applicant seeks to argue (whether documents must be lodged within official working hours) was not what the Court determined; the appeal turned on late payment of filing fees, and the point is not novel
Costs
Application dismissed with costs to the 2nd, 3rd and 4th respondents
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.
Certification is therefore, a filtering process to ensure that only appeals with elements of general public importance find their way to the Supreme Court.
The onus, in such applications, lies on the applicant to satisfy the Court that the intended appeal discloses matters of general public importance.
We find that the applicant has not discharged the burden of satisfying us that its intended appeal to the Supreme Court raises matters of general public importance within the meaning of Article 163(4)(b) of the Constitution.
Accordingly, the applicant’s Notice of Motion dated 2nd October 2025 is hereby dismissed with costs to the 2nd, 3rd and 4th respondents.
Had the filing fees been paid at the time the appeal was lodged, it is doubtful whether the same decision would have been arrived at.
Issues in the judgment
#Date inconsistency: the appeal is said to have been lodged on '11th August 2022' although all surrounding dates are August 2025
The 4th respondent is printed as 'ONSPECTION SERVICES INC JAPAN' in the cause title, apparently a typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- ELC Electroconsult SPA v Public Procurement Administrative Review Board & 3 others[2025] KECA 2314 (KLR)19 Dec 2025followed
Cite this brief
#Cite this brief
Caselaw, "TUV Austria Turk v Public Procurement Administrative Review Board & 3 others", Case Analysis (2026). Civil Appeal (Application) E644 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.