TUV Austria Turk v Public Procurement Administrative Review Board & 3 others

contended that the seven-day period allowed for the ling of the appeal to this Court from a decision of the High Court lapsed on 11th August 2025, hence the Court lacked jurisdiction to hear the appeal. 3. The applicant, on its part, took the position that after the judgment of the High Court was posted in that court’s portal on 4th August 2025, he led the notice of appeal on 8th August 2025, followed by lodging of the appeal in the e-ling portal on 11th August 2025. It added that the appeal was approved by the system administrator on 12th August 2025 and payment made on the same day. Its position was therefore, that the appeal was led within the prescribed time. 4. In its judgment delivered on 19th September 2025, this Court, citing several authorities, took the view that a document is deemed as duly led after a party has not only lodged it at the appropriate court registry, but also paid the prescribed fees. From the Judiciary Case Tracking System (CTS) and the receipt of payment, the Court conrmed that although the appeal was indeed lodged on 11th August 2022 at 22.02pm, the payment of the Court fees was made and receipted on 12th August 2025 and that that was the time the appeal could be deemed as duly led. According to the Court, the applicant’s appeal was led after the lapse of the seven days provided in section 175(4) of the Act. The Court noted that much as e-ling allows parties to lodge documents any time from any part of the world with internet connection, it remains a fact that our courts have xed working hours and that in ensuring that they comply with the timelines provided by the Constitution, statutes, regulations, rules or the courts, advocates and parties must take into consideration the working hours of the courts. 5. The Court concluded that it was bereft of the requisite jurisdiction to render a judgment on merit on the issues raised by the parties and proceeded to strike out the appeal with costs to the 2nd, 3rd and 4th respondents. 6. The applicant is aggrieved with the said decision and intends to appeal to the Supreme Court. It has already given a notice to do so and is now before this Court, by an application dated 2nd October 2025, expressed to be brought under 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 and Rule 42 of the Court of Appeal Rules, seeking orders that this Court certies that a point of law of general public importance is involved in its intended appeal and consequently grants leave to the applicant to lodge an appeal to the Supreme Court against this Court’s decision made on 19th September 2025. 7. We heard the application on 4th March 2026 on this Court’s virtual platform when learned counsel, Mr. Sisule Musungu, appeared for the applicant, learned counsel, Ms. Teresa Gachagua, appeared for the 2nd and 3rd respondents and learned counsel, Mr. Justus Omollo, appeared for the 4th respondent. There was no appearance for the 1st respondent despite due service of the notice of hearing. 8. The applicant’s case, as set out in the adavit in support of the application and the written submissions which were highlighted by its counsel, Mr. Sisule, was that the specic point of law of general public importance is in respect to the computation of time to le appeals in the present era of leveraging digital technology in the administration of justice, and particularly where decisions of courts and/or tribunals are delivered outside normal working hours of the Judiciary. According to the applicant, this issue of law seeks to dene when time starts to count, impacting jurisdiction which is one of the most crucial concepts of judicial determination. The said issue, it was averred, has received varied or contradictory stances by this Court, with the High Court taking the position that owing to the Practice Direction in Electronic Case Management, the deadline for the purpose of computation of time is 11:59:59, standard Kenya Time, even for delivery of decisions by courts and Tribunals. It was the applicant’s case that these varying ndings have signicant implications on the concept of computation of time, hence the necessity of the Supreme Court to resolve the uncertainty or conicting decisions, with nality. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25 2

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The issue, in the applicant’s view, has recognizable implications on litigants' right to access to justice, as enshrined under Article 48 of the Constitution. 9. The applicant asserted that where computation of time is inconsistent or vague, this may lead to a situation where parties are locked away from the seat of justice based on conicting approaches to the computation of time. It was averred that the determination of this issue of law of general public importance transcends the circumstances of the particular case, and has a signicant bearing on public interest and on the proper conduct of administration of justice. This, it was added, is particularly so within dispute resolution of public procurement matters, which bear strict statutory timelines both for the litigants and institutions exercising judicial authority. 10. It was submitted on behalf of the applicant that the Apex Court would address and determine: whether the institutions administering justice have a dened working schedule; in the alternative, whether institutions administering justice can deliver decisions in hours considered to be outside working schedule, include night time, weekends, and/or holidays; arising from the adoption of digital technologies in the administration of justice(including the e-ling system and virtual courts) what suces as delivery of decisions in proceedings; whether the mere posting of a decision on the eling platform suces as rendering of a decision; the implication on the computation of time, when decisions are rendered at times considered to be outside the normal working schedule; and whether parties have a legitimate expectation that institutions vested with judicial authority under Article 159(1) cannot exercise their mandate at times considered to be outside the normal working schedule, including night time, weekends, and/or holidays. 11. The position adopted by the 2nd and 3rd respondents, in opposing the application, was that the question of computation of time is an ordinary matter hence it would be against the spirit of the Constitution for certications to be granted to ordinary cases such as this, where an appeal to this Court ought to be nal. In this regard, the decision of this Court in Greeneld Investments Limited v Baber Alibhai Mawji, Civil Appl. No. Sup. 5 of 2012 (UR4/2012), was referred to. 12. The 2nd and 3rd respondents submitted that the applicant failed to satisfy the threshold set by the Supreme Court as regards certication of cases of general public importance in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone [2013] eKLR (KLR). It was their position: that the intended appeal has no demonstrable public interest as the interests therein are purely commercial arising from a procurement process in which the applicant was unsuccessful; that the interests involved in the intended appeal have no potential of attracting public signicance and no element of “general public importance” has been identied by the applicant as a basis for the certication sought; that the legal question on “computation of time to le appeals” is a settled matter of law and the applicant has not demonstrated that there is any uncertainty as to the application of Sections 5 and 175 of the Act and Article 259(5)(a) of the Constitution as to require the Supreme Court to pronounce itself on the matter; and that the legal question identied has no signicant bearing on public interest. 13. It was submitted that this court has already pronounced itself on the subject of computation of time in its decision in this matter on 19th September, 2025, where it held that time starts running a day after the delivery of judgment. As to when time ends, this Court in Precision Experts Limited v Public Procurement Administrative Review Board & 3 others [2025] KECA 976 (KLR) restated the position that for purposes of computation of time, the ling deadline on any given day is 11.59pm in the standard Kenyan time. According to these respondents, there is no inconsistency in the decisions of this Court regarding when time starts running and when it ends. It was further contended that the present application violates Section 175(4) of the Act, which provides that an appeal to this Court is nal. We were urged to nd no merit in the application and to dismiss it with costs to the respondents. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25 3

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14. The 4th respondent, in its opposition to the application averred that: the applicant is not a juristic person recognized under the laws of the Republic of Kenya or any other jurisdiction, and as such, lacks the legal capacity to sue or be sued in that name and cannot maintain this application or the intended appeal before the Supreme Court; no issue of law of general public importance arises warranting certication to appeal to the Supreme Court, since the Practice Directions in Electronic Case Management issued by the Chief Justice vide Gazette Notice No. 2357 of 2020, at paragraph 14(2), clearly and unambiguously provides that the deadline for the purpose of ling is 11:59:59, standard Kenya Time; having regard to paragraph 14(3), the deadline for computation of time under paragraph 14(2) of the Practice Directions in Electronic Case Management is applicable to decisions of the Court being documents required to be lodged at the registry by dint of section 2 of the High Court (Organization and Administration) Act); the position on computation of time has been consistently and clearly articulated by this Court in several nal and binding decisions of this Court, including but not limited to: Public Procurement Administrative Board v Four M Insurance Brokers Limited & 3 Others [2024] KЕСА 79 (KLR); Sharpcut Designers Ltd v Public Procurement Administrative Review Board & 2 Others [2025] KЕСА 1132 (KLR); and Aprim Consultants vs. Parliamentary Service Commission & Another [2021] KECA 1090 (KLR). 15. It was further submitted: that the law on computation of time under the Act is settled and cannot be in any controversy; that there are no conicting decisions from this Court that would necessitate the intervention of the Supreme Court; that if the applicant’s argument that decisions delivered outside normal working hours should be deemed delivered on the next working day were to be accepted (which is denied), such construction would be in conict with the express provisions of the timelines under Section 175 of the Act as read with Section 5(1) thereof under which it is instructive that the provisions of the Act prevail over any other inconsistent or conicting provision of legislation, government notices or circulars; that the applicant’s intended appeal is merely an attempt to re-litigate issues that have been conclusively determined by this Court, and does not raise any novel point of law that transcends the circumstances of this case; that the intended appeal to the Supreme Court has no reasonable prospects of success for the following reasons: that the practice that a document is only deemed as duly led upon payment of the prescribed fees is well established; and that the applicant's attempt to introduce a novel interpretation of the law on computation of time is an afterthought designed to circumvent its own failure to comply with clear statutory timelines. 16. We have considered the application, the submissions by both parties and the case law cited. The sole issue for determination is whether the applicant has demonstrated that its case involves a matter of general public importance to merit certication by this Court to appeal to the Supreme Court under Article 163(4)(b) of the Constitution. Under the said Article, appeals lie from this Court to the Supreme Court under the following circumstances: (a) as of right in any case involving the interpretation or application of the Constitution and (b) in any other case in which the Supreme Court or this Court certies that a matter of general public importance is involved. 17. Both the Supreme Court and this Court have consistently held that in applications for certication under Article 163(4)(b) of the Constitution, only exceptional cases, which raise cardinal issues of law or of jurisprudential moment deserve the attention of the Supreme Court. (See Peter Oduor Ngoge vs. Hon. Francis Ole Kaparo & 5 Others, SC Petition No. 2 of 2012 [2012] eKLR and Koinange Investment and Development Company Limited v Ian Kahiu Ngethe & 3 others (Being sued as the personal representatives of the Estate of Robert Nelson Ngethe (Deceased)) [2019] eKLR. The rationale for the above approach is that the Supreme Court was never intended to serve as an additional tier for all appeals from this Court. Certication is therefore, a ltering process to ensure that only appeals with elements of general public importance nd their way to the Supreme Court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25 4

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18. The onus, in such applications, lies on the applicant to satisfy the Court that the intended appeal discloses matters of general public importance. While neither the Constitution nor the Supreme Court Act and the Rules made thereunder denes “a matter of general public importance” the Supreme Court in Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone (supra) stated: “ Before this Court ‘a matter of general public importance’ warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impacts and consequences are substantial, broad based, transcending the litigation- interests of the parties, and bearing upon the public interest.” 19. This Court in Kenya Civil Aviation Authority v African Commuter Service [2015] eKLR, dened public interest as follows: “ Public interest, although not susceptible of precise denition, has certain characteristics which are inherent in the term itself. As stated in R (Corner House Research) vs. Director of SFO [2008] 4 All ER 927 ‘it must mean something of importance to the public as a whole rather than just to a private individual.’ The Black’s Law Dictionary denes public interest as: ‘the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justies Government regulation.’” 20. The guidelines to be followed while dealing with such applications were, however set out by the Supreme Court in Town Council of Awendo v Nelson Oduor Onyango & 13 others [2015] eKLR as follows: i. for an intended appeal to be certied as one involving a “matter of general public importance,” the intending applicant is to satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a signicant bearing on the public interest; ii. where the matter in respect of which certication is sought raises a point of law, the intending applicant is to demonstrate that such a point is a substantial one, the determination of which will have a signicant bearing on the public interest; iii. such question or questions of law is/are to have arisen in the Court or Courts below,and must have been the subject of judicial determination; iv. where the application for certication has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination; v. mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certication for an appeal to the Supreme Court; the matter to be certied for a nal appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution; vi. the intending applicant has an obligation to identify and concisely set out the specic elements of “general public importance,” which he or she attributes to the matter for which certication is sought; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25 5

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vii. determinations of fact in contests between parties are not, by and of themselves, a basis for granting certication for an appeal before the Supreme Court; viii. issues of law of repeated occurrence in the general course of litigation may, in proper context, become ‘matters of general public importance’, so as to be a basis of certication for appeal to the Supreme Court; ix. questions of law that are, as a fact, or as appears from the very nature of things, set to aect considerable numbers of persons in general, or as litigants, may become ‘matters of general public importance’, justifying certication for nal appeal in the Supreme Court; x. questions of law that are destined to continually engage the workings of the judicial organs, may become ‘matters of general public importance’, justifying certication for nal appeal in the Supreme Court; xi. Questions with a bearing on the proper conduct of the administration of justice, may become ‘matters of general public importance,’ justifying certication for nal appeal in the Supreme Court.” 21. We have carefully analyzed the impugned judgment, the grounds urged by the applicant in its application, the supporting adavit and the submissions. As stated above, one of the conditions that must be satised by an applicant in applications such as this one where it is alleged that the matter in respect of which certication is sought raises a point of law, is that the point to be urged is a substantial one, the determination of which will have a signicant bearing on the public interest and must have arisen in the Court or Courts below, and must have been the subject of judicial determination. It is therefore, important for us to determine what this Court determined in the decision intended to be appealed against. This Court, in dismissing the appeal, found that although the appeal was lodged on 11th August 2022 at 22.02pm, the payment of the court fees was made and receipted on 12th August 2025 and hence that was the time the appeal could be deemed as duly led. The deeming of the date of the ling of the appeal occasioned by the late payment of the ling fees was what informed the decision to strike out the appeal. It was not the fact that the appeal was lodged outside the court working hours. The court working hours was alluded to by the Court with respect to e-ling system under which parties are at liberty to lodge documents any time from any part of the world. Had the ling fees been paid at the time the appeal was lodged, it is doubtful whether the same decision would have been arrived at. 22. In our view, the issue identied by the applicant in this application and which it intends to argue before the Supreme Court, being whether documents should be lodged within the ocial working hours, was not what was determined by this Court. The issue of when documents are deemed to have been led, is not a novel point. It was an issue even before the e-ling system was introduced and parties who were found to have paid ling fees payments on a date other than the dates when they lodged their documents, were deemed to have led them at the time they were paid for. We nd 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. 23. Accordingly, the applicant’s Notice of Motion dated 2nd October 2025 is hereby dismissed with costs to the 2nd, 3rd and 4th respondents. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. S. GATEMBU KAIRU, (P), FCIArb, C.Arb JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25 6

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.................................. G.V. ODUNGA JUDGE OF APPEAL .................................. MURUNGI B. KAIRARIA JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1804/eng@2026-09-25 7

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