Kenya Plc & 2 others v Public Procurement Administrative Review Board & 2 others

4. The motion, dated 9th July 2026, was placed before me, under certificate of urgency, on 10th July 2026. I certified it urgent, and directed that the same be served, for inter partes hearing, on 13th July 2026. I see, in the record before me, an affidavit of service, showing that the application was served on the respondents, on 10 th July 2026. Come 13th July 2026, the parties appeared, but the respondents had not filed any replies to the application, citing the brevity of the time available between the service and the oral hearing. However, due to the tightness of the time within which the appeal ought to be heard at the Court of Appeal, I decided to hear the parties, despite the respondents not having filed responses. 5. Mr. Luseno urged the motion, for the applicant. He emphasised the fact that the appeal had been filed; the 7-day period was lapsing; the possibility of the appeal being rendered nugatory, should the decision of the 1st respondent be executed; and Rule 31 of the Fair Administrative Action Rules, 2024, empowering this court to grant stay or injunction orders as it may deem fit. 6. The application was opposed. Mr. Muchai argued for the 2 nd and 3rd respondents. His highlights were that grant of the orders would cause prejudice, as there is now no contract for supply of diesel, and, without it, the parts of the country dependent on thermal power would be exposed to power shortage. 7. Mr. Kiprono argued the case for the interested party. He submitted that the 7-days stay, ordered on 6 th July 2026, was to facilitate the filing of the appeal, and that purpose was achieved. He further submitted that this court became functus officio, after delivering judgement, and the applicant would be better of moving the Court of Appeal, where the appeal has been filed. 8. Let me start with considering the issue of jurisdiction, as to whether I, sitting as the High Court, would have jurisdiction to consider grant of a stay or injunction, to preserve the status quo, pending appeal at the Court of Appeal. Although the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, provides for appeals from the decision of the High Court on judicial review, at section 175(4), to the Court of Appeal, the said Act does not have any meaningful provisions on appeals. The Public Procurement and Asset Disposal Rules are equally silent. 2

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9. That of itself would not be fatal, for where judicial review is brought under Order 53 of the Civil Procedure Rules, the provisions of the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules, on appeals, would come in handy. Where the judicial review proceedings are founded on the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, then the provisions of the Fair Administrative Action Act and the Fair Administrative Action Rules, on appeals, would be useful. 10. The proceedings herein were premised on the Fair Administrative Action Act, and were commenced by way of originating motion. The provisions of the Fair Administrative Action Act and the Fair Administrative Action Rules, on appeals, would, therefore, be critical. 11. Section 9(5) of the Fair Administrative Action Act provides for appeals to the Court of Appeal, from decisions of the High Court on judicial review. The detailed procedure on such appeals is in Part III of the Fair Administrative Action Rules. Rule 31(1) aligns with section 175(4) of the Public Procurement and Asset Disposal Act, by providing that an appeal, from a judicial review determination, shall be made at the Court of Appeal within 7 days. Rule 31(5) of the Fair Administrative Action Rules provides that a “court may grant stay of execution or an injunction pending an appeal or review of its decision on such conditions as the court may deem fit.” 12. “Court,” for purposes of the Fair Administrative Action Rules, is interpreted under Rule 2, to include “a tribunal.” That would mean that the stay or injunction would be grantable by the Public Procurement Administrative Review Board and the court. The court here could be the High Court or the Court of Appeal. However, the language, in Rule 31(5) of the Fair Administrative Action Rules, points more to the High Court than the Court of Appeal, for it talks about the “court may grant stay of execution or an injunction pending an appeal … of its decision.” The High Court would, therefore, have jurisdiction, by dint of the Fair Administrative Action Rules, to grant a stay or injunction pending an appeal, at the Court of Appeal, against its decision on judicial review. 13. Rule 31(5) of the Fair Administrative Action Rules talks of the court granting a stay or injunction “pending an appeal or review of its decision.” The applicant does not seek stay or injunction with respect 3

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to my decision of 6th July 2026, for, by that decision, I merely dismissed the originating motion. It was a negative order that would not be available for stay, for a dismissal of a suit or a cause cannot be stayed. However, Rule 31(5) of the Fair Administrative Action Rules does not talk about a stay of the decision of the court, but rather a stay or injunction pending the appeal or review of the decision. The stay or injunction could relate to some other action, and not necessarily execution of the decision under appeal. An action or activity that would defeat the appeal. The language, of Rule 31(5) of the Fair Administrative Action Rules, does not, therefore, preclude the High Court from granting a stay or injunction, pending hearing and determination of the appeal. 14. The court may also rely on the inherent power of the court, as set out in section 3A of the Civil Procedure Act, and Article 159 of the Constitution, to grant interim orders to ensure that the substratum of the appeal, from the judicial review judgement, is not rendered nugatory. 15. The key considerations, for grant of stay or injunction orders, would include the arguable appeal and nugatory test, as was the case in East African Cables Limited vs. Public Procurement Complaints Review and Appeals Board and another [2007] eKLR [2007] KECA 249 (KLR); the balancing of public interest and private rights, as was the case in Republic vs. Public Procurement Administrative Review Board & Others Exparte Transcend Media Group Limited [2017] eKLR [2017] KEHC 9142 (KLR); the risk of implementing a contract principle, as was the case in Republic vs. Public Procurement Administrative Review Board & others ex parte Transcend Media Group Limited [2017] eKLR [2017] KEHC 9142 (KLR); and the principle of functus officio, as was the case in Managing Director, Kenya Pipeline Limited & another vs. Public Procurement Administrative Review Board & 2 others [2025] KECA 756 (KLR) and Keller Customs Kenya Limited vs. Public Procurement Administrative Review Board & 3 others [2026] KECA 237 (KLR). These considerations are indicative of the fact that the power to grant stay or injunction pending appeal is discretionary, and guided by a body of case law. 16. The applicant relied on the arguable appeal and nugatory test, and the risk of implementing a contract principle, arguing that the issues upon which my judgement turned were not fully settled, 4

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providing basis for argument and settlement at the Court of Appeal, and that not granting stay or injunction pending appeal, could render the appeal nugatory, should the contract be executed between the 2nd and 3rd respondents, on one hand, and the interested party, on the other. 17. The 2nd and 3rd respondents grounded their case on the balancing of public interest and private rights principle, that the public, who depend on electricity generated from the diesel, the subject of the tender or procurement process, would suffer, during the duration of the stay or injunction, as the contract with the applicant has ended, and that due to be executed with the interested party is stayed. 18. The interested party has argued based on the functus officio principle, that the High Court having pronounced itself on the matter, its jurisdiction, to review the decision of the 1st respondent, is exhausted, and there is no other business pending for it to handle, and that the appropriate forum would be the Court of Appeal, for grant of those orders, given that the appeal is pending there. 19. The applicant has filed an appeal, from what I am able to see from the record. Its apprehension is that, should the decision of the 1st respondent be executed, by way of the contract being signed between the 2nd and 3rd respondents, and the interested party, there could be some inconvenience suffered. However, I am not persuaded that the appeal would be rendered nugatory, for the Court of Appeal has jurisdiction to vacate the decision of the 1 st respondent, should it find that the High Court was wrong, and should have vacated that decision, and order that the procuring process be undertaken afresh. Whatever loss the applicant would have suffered, in the interim, could be compensable in damages. 20. With respect to the purpose for which the diesel is required, to generate thermal power, and the disruption a grant of stay or injunction orders would create, and the extent to which that could affect the public, hence the need to balance public interest as against the private interest of the applicant, is the next consideration. There is quite some force in the argument by the 2nd and 3rd respondents, that public interest should outweigh private interest in this case. The contract with the applicant has ended, and there is no agreement for supply of diesel in the interim. For the 45 days, between the filing of 5

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the appeal and its determination, the segment of the public, which relies on the power to be generated from that diesel, could suffer. There are critical sectors which depend heavily on that electricity. It could be worth pointing out, that the court does not merely rubberstamp; it has to balance the legal merits of the case, against broader public concerns. 21. The interested party grounded its case on functus officio. It is true, that the jurisdiction of the High Court, with respect to the judicial review, has been exhausted. It would be functus officio, to that extent. However, that does not extend to grant of stay or injunction, for Rule 31(5) of the Fair Administrative Action Rules expressly confers that jurisdiction, which is exercisable after delivery of the judgement. 22. I am persuaded that public interest, in this case, far outweighs private interest, for the reasons that should emerge from what I have discussed above. The order that commends itself to me is to decline the prayers sought, of stay or injunction orders, pending the hearing and disposal of the appeal. I, accordingly, therefore, decline to allow the motion, dated 9th July 2026, and I hereby dismiss the same. Each party shall bear its own costs. Orders accordingly. DELIVERED VIA CTS, AND VIRTUALLY, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 13TH DAY OF JULY 2026. W MUSYOKA JUDGE Mr. Abdirahman, Court Assistant. Advocates Mr. Luseno and Ms. Musau, instructed by Majanja Luseno & Company, Advocates for the applicant. Mr. Munene Wanjohi, instructed by the Attorney General, for the 1 st respondent. Mr. Joseph Muchai, Advocate for the 2nd and 3rd respondents. Ms. Kerubo, instructed by AE Kiprono & Company, Advocates for the 4th respondent. 6

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