KENYA: THE TIME FACTOR IN FILING AND DETERMINATION OF PROCUREMENT APPEALS

By Cecil Kuyo,Effie Omondi Thursday, March 24, 2022
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On 4 March 2022, the Court of Appeal in Civil Appeal E598 of 2021 ADK Technologies Ltd in Consortium with Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 others ] [2022] KECA 407 (KLR), delivered a unanimous judgment in which it dismissed an appeal for lack of jurisdiction on account of late filing of a procurement appeal. The contention was centered on the Court of Appeal’s jurisdiction to hear and determine an appeal arising from Section 175(4) of the Public Procurement and Asset Disposal Act (the “PPAD Act”) after the expiry of 45 days from the date of the decision appealed from.”

In arriving at this decision, the Court of Appeal cited two recent cases in CA. No. E039 of 2021 Aprim Consultants v. Parliamentary Service Commission & Another (unreported) and CA. No. E012 of 2022 The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others (unreported), where the Court of Appeal had underscored that Section 175 of the PPAD Act was couched in mandatory terms, requiring an appeal under it to be heard and determined within 45 days.

This is a monumental pronouncement that will hopefully clarify issues of jurisdiction in matters under the PPAD Act. In the period before the Court of Appeal’s determinations, litigants have argued that the statutory timelines are not strict and mandatory and that courts may grant leave where it is deemed practicable to do so. The arguments have been on the basis that the timeline requirement is a technical issue that may be overlooked, especially in view of the already stretched judicial system. This school of thought has now been found to be without legal basis as the Court of Appeal has found that the time requirement is a jurisdictional issue and not a mere technicality that is granted only by law.

This decision is also important because of the nature of procurement appeals. More often than not, colossal sums of money are involved, and a lot of parties’ interests are at stake in procurement disputes. In Kenya, several entities are involved in numerous projects in line with the Government’s Post-COVID-19 Recovery and Economic Transformation, and inevitably, procurement is an important process in this chain. It is therefore critical that procurement appeals be disposed of timeously as intended by the PPAD Act, and as has been confirmed by the second highest court in the land.