Jurisdiction is everything. Without it, a court has no power to make one more step. This was the Court’s holding in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1.

The Court in the case defined jurisdiction by stating:

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means”.

The Public Procurement and Asset Disposal Act (PPADA) confers authority on the Court of Appeal to determine procurement disputes as follows:

Section 175 (4) “A person aggrieved by the decision of the High Court may appeal to the Court of Appeal within 7 days of such decision and the Court of Appeal shall make a decision within forty-five days, which decision shall be final”.

The Court of Appeal’s decision in Civil Appeal E039 of 2021 Aprim Consultants vs Parliamentary Service Commission & The Public Procurement Administrative Review Board effectively confirmed that Section 175 of the PPADA has to be complied with.

Section 175 of the PPADA constricts time taken for filing, hearing and determination of public procurement disputes and the consequences for not complying within the strict timelines.

In the Aprim Consultants Case, the Court of Appeal held that the judgement of the High Court dated January 15, 2021 was a nullity by reason of having been rendered outside the mandatory timelines set in Section 175 (3) of the PPADA.

By the judgement dated January 15, 2021, the High Court reversed the decision of the Public Procurement Administrative Review Board (PPARB) made on May 21, 2020. Aprim Consultants had sought review of the decision of Parliamentary Service Commission (PSC), where PSC had communicated to bidders’ termination of RFP No. PJS/RFP/001/2019-2020 pursuant to section 63 (1) (a) (i) of the PPADA.

PPARB upheld Aprim Consultants Request for Review, proceeded to cancel and set aside the letters of notification of termination of RFP No. PJS/RFP/001/2019-2020 and directed PSC to complete the procurement process to its logical conclusion including issuing notification letters of the outcome for RFP No. PJS/RFP/001/2019-2020.

In reversing the orders of the PPARB, the High Court quashed the decision of the PPARB and declared that the termination letter was valid and proceeded to reinstate the same. Aggrieved by this decision, Aprim Consultants raised an appeal before the Court of Appeal on the grounds that the High Court had erred in law by failing to issue its decision within 45 days as contemplated under Section 175 (3) of the PPADA.

The Court of Appeal held that the PPADA is clear that the High Court is under an express duty to make its determination within the time prescribed, during which time its jurisdiction still exists. The jurisdiction of the High Court when it comes to hearing and determining judicial review proceedings in relation to public procurement and asset disposal disputes is a time-bound jurisdiction. The moment the 45 days’ end, the jurisdiction also ends.

There has been developing jurisprudence by the Court of Appeal since this decision was rendered and the jurisprudence is calling on litigants and their advocates to be cautious and mindful of the strict timelines with regard to filing, hearing and determination of public procurement and asset disposal disputes.

As late as March 2, 2022, before the Court of Appeal was Civil Appeal No. E598 of 2021 – ADK Technologies Limited in consortium with Transnational Computer Technology vs Public Procurement Administrative Review Board & 4 Others. In this matter, the Appellant sought to appeal against the decision of Justice Jairus Ngaah delivered on April 9, 2021 where the latter found that the Notice of Motion filed before the court praying that the decision of the PPARB be quashed was bad in law and an abuse of the court process and proceeded to strike out the Notice of Motion.

Below is a background summary of the instant case:

1. 1. 1. The National Treasury sought to procure for Provision of Onsite Support for IFMIS, which is the electronic procurement system that handles government payments to service providers. Among the bidders were Kingsway Business Systems Limited, in consortium with Kobby Technologies Limited and Inplenion Eastern Africa Limited (“the KBS Consortium”).
      2. The other bidder of interest here is ADK Technologies Limited (ADK) in consortium with Transnational Computer Technologies Limited (TCT).
      3. The tender was closed on July 22, 2020 and the KBS Consortium was declared the successful bidder when the award was made by a letter dated January 25, 2021.
      4. On February 8, 2021, a Request for Review was filed before the PPARB in the name of ADK Consortium. This was PPARB Application No. 18 of 2021 (“the Request for Review”). The Request for Review challenged a number of issues to do with the evaluation of the Tender.
      5. However, on February 9, 2021 (14 days after the Notification of Award had been issued and one day after filing of the Request for Review), the KBS Consortium was notified by the National Treasury that the contract was ready for signing. The Accounting Officer and the KBS Consortium signed the contract on the morning of February 9, 2021.
      6. The Notification of Appeal by the Secretary of the PPARB was delivered to the National Treasury’s offices at around 2.30 p.m. on February 9, 2021. As fate would have it, a contract had already been signed before the notification for PPARB proceedings had reached the National Treasury.

The said Request for Review was heard, and the PPARB issued its determination on March 1, 2021 wherein it struck out the Request for Review Application which it had found to be fatally defective for the following reasons:

1. 1. 1. The applicant in the Request for Review was identified as ADK Technologies Limited in consortium with Transnational Computer Technologies Limited which means both members of the consortium must be involved in the Request for Review. Both must expressly authorize the filing of a review application before the PPARB, noting that they submitted a technical and financial proposal in response to the subject Tender jointly as a consortium. This finding was in response to a Notice of Preliminary Objection filed by the KBS Consortium that the PPARB lacked jurisdiction to entertain the Request for Review due to lack of authorization by TCT.
      2. On February 23, 2021, ADK filed an affidavit stating that as the lead bidder of the consortium of ADK & TCT, it accepted the Procuring Entity’s decision to declare the bid submitted by the consortium unsuccessful, it did not authorize TCT or any of its officers to file a Request for Review before the PPARB to challenge the outcome of evaluation of the subject tender and it did not wish to participate as an applicant in the Request for Review.
      3. Samuel Haile Nigussie did not provide evidence to demonstrate that he has authority to file a Request for Review application before the PPARB on behalf of the consortium of ADK & TCT, or on behalf of ADK or TCT as consortium partners.
      4. Samuel Haile Nigussie did not have authorization from ADK to file a Request for Review application before the PPARB on behalf of the consortium of ADK & TCT, or on behalf of ADK or TCT as consortium partners.

Before the lapse of 14 days stipulated under Section 175 (2) of the PPADA, Judicial Review proceedings were filed in the name of the ADK consortium before the High Court under HCJR Case No. E027 of 2021 seeking to quash PPARB’s decision. The High Court heard the judicial review application and issued its Judgement on April 9, 2021 wherein it struck out the application for being bad in law and an abuse of the court process.

The basis for the Judgment delivered by the High Court was that:

1. 1. 1. TCT could not forcefully continue to undertake proceedings in the name of ADK or purport to be acting at the behest of ADK.
      2. As far as ADK is concerned, it accepted the Tender outcome and never wished to challenge the outcome through the review proceedings or at all. Its position has not changed despite the filing of the review proceedings before the PPARB and the Judicial Review Proceedings before the High Court.
      3. The purported applicant, ADK [in the judicial review proceedings] came out to disown the application in clear and unambiguous terms.
      4. The application was filed without ADK’s consent or knowledge; facts that were not controverted by Samuel Haile Nigussie who swore the verifying affidavit in support of the application.

By a Notice of Motion dated April 29, 2021, TCT, again in the name of ADK Consortium moved to the Court of Appeal for orders that time be extended for lodging its Notice of Appeal in the intended appeal arising from the judgement and decree of the High Court delivered on April 9, 2021.

The application was based on the grounds that the Notice of Appeal was not lodged by the Deputy Registrar of the Judicial Review Division until April 28, 2021, which fell outside the 14 days provided for under the Court of Appeal Rules.

This application was opposed through a preliminary objection filed by Gerivia Advocates LLP on behalf of the KBS Consortium. The preliminary objection questioned the Court of Appeal’s jurisdiction to extend time imposed under Section 175 (4) of the PPADA.

After considering the preliminary objection, and the submissions on the same by all parties (including KBS Consortium, ADK and TCT) the Court of Appeal stated:

“There is the jurisdictional issue raised by the 4^th Respondent. I do not think the issue is idle or frivolous. Indeed, my view is that it is germane and a decision may have to be made on the conflicting timelines between the Court of Appeal Rules and the Public Procurement and Assets Disposal Act”.

On July 9, 2021, the Court allowed the application and the Notice of Appeal lodged with the Deputy Registrar on April 28, 2021 was deemed to have been filed within time. The Court clarified that the extension of time granted was pursuant to Rule 4 of the Court of Appeal Rules and not pursuant to Section 175 of the PPADA.

ADK in consortium with TCT filed its Memorandum and Record of Appeal on October 17, 2021. The appeal came up for hearing on March 2, 2022 before Justice Ole Kantai, Justice Dr. K. Laibutta and Justice K. M’Inoti.

During the hearing of the appeal, the Court posed a question regarding the timeline of the matter (that is whether the Court of Appeal’s jurisdiction has been ousted given the timelines under Section 175 (4) of the PPADA), having noted that the Memorandum and Record of Appeal were filed on October 17, 2021, some 191 days from the date of the decision of the High Court.

Counsel for the Appellant stated that Section 175 (4) of the PPADA should be read alongside the Court of Appeal Rules. In his rebuttal, after submissions by counsels for the Respondents, counsel for the Appellant added that Section 175 (4) of the PPADA is not clear on when the 45 days within which to render the decision should start running that is:

• whether time should start running upon filing of the Notice of Appeal or filing of the Record and Memorandum of Appeal;
• whether the 45 days should start running after the hearing (i.e. that the Court of Appeal’s decision be rendered within 45 days after the date of hearing of the appeal).

On behalf of the KBS Consortium, it was submitted that the Record and Memorandum of Appeal was filed on October 17, 2021 and that going by the timelines under Section 175 of the PPADA, the Court of Appeal should have rendered its decision within 45 days from October 17, 2021.

In response to the submission by counsel for the Appellant that Section 175 (4) of the PPADA should be read with the Court of Appeal Rules, it was submitted on behalf of the KBS Consortium that Section 5 of the PPADA states that where there is a conflict between the provisions of the PPADA and any other written law, the PPADA takes precedence.

In its decision rendered on March 4, 2022, the Court of Appeal cited with approval the Aprim Consultants decision (cited above) together with The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others, CA. No. E012 of 2022 (“the TSK Electronica case”) which accentuate that the timelines under Section 175 of the Act are cast in stone, cannot be varied and that these timelines also accentuate the intention of Parliament to ensure that disputes relating to public procurements and asset disposals are disposed of expeditiously. Consequently, the Court of Appeal held that it no longer has jurisdiction to hear and determine the appeal and proceeded to strike it out.

It is worth mentioning that on March 4, 2022 when the Court of Appeal rendered the decision in Civil Appeal E598 of 2021, the Court also delivered the Judgement in the case of the Joint Venture of Lex Oilfield Solutions Ltd & CFAO Kenya Ltd v PPARB & 4 Others, Civil Appeal No. E022 of 2022 where it also upheld the timelines under Section 175 and held that they were cast in stone. This was after citing the TSK Electronica decision which followed the Aprim Consultants decision and found it to be good law. The Court of Appeal concluded that there was no basis to ask them to depart from the consistent decision of the court on this issue without moving the court in the normal way for an expanded bench.

Parting Shot

• The limit of the Court of Appeal’s authority to hear and determine public procurement and asset disposal disputes is imposed by statute, that is the PPADA.
• Additionally, this authority is restricted with regard to time under the same statute and therefore any judgement rendered by the Court of Appeal outside the 45 days prescribed under Section 175 (4) of the PPADA would be a nullity. Since the Aprim Consultants decision the Court of Appeal decisions have been consistent on this point and jurisprudence is developing consistently.
• The timelines under the PPADA are tight and they are unlike the usual timelines for the filing and determination of proceedings.

Proceedings before the PPARB

• • • Request for Review applications should be filed within 14 days from the date of occurrence of alleged breach or notification of award (Section 167 (1) PPADA).
    • The PPARB is required to render a decision within 21 days after receiving the Request for Review (Section 171 of the PPADA).

Judicial Review Proceedings before the High Court

• • • A person aggrieved by the decision of the PPARB may seek judicial review by the High Court within 14 days from the date of PPARB’s decision. (Section 175 (1) of the PPADA).

• • • The High Court has 45 days to hear and determine the judicial review application. (Section 175 (3) of the PPADA).

Appeal to the Court of Appeal

• • • A person aggrieved by the decision of the High Court may appeal to the Court of Appeal within 7 days of the decision of the High Court. (Section 175 (4) of the PPADA).
    • The Court of Appeal shall make a decision within 45 days. (Section 175 (4) of the PPADA).
      
• The timelines under Section 175 of PPADA have been questioned –particularly with regard to their practicality. The reason the timelines are thought to be a tall order can be illustrated as follows:
  • • Ordinary appeals at the Court of Appeal are initiated by filing a Notice of Appeal within 14 days from the date of the decision appealed from.
    • Subsequently, the appellant has 60 days within which to file the Memorandum and Record of Appeal. These 60 days could be longer if the appellant obtains a certificate of delay.
    • No time is set for hearing of ordinary appeals. It is only the rendering of the decision (after hearing) that is required to be done within 90 days (Rule 32 (1) of the Court of Appeal Rules).
• As the Court of Appeal rightly stated in Civil Application 134 of 2021 (cited above) there are conflicting timelines between the PPADA and the Court of Appeal of Rules such that some litigants and advocates will elect to strictly be guided by the PPADA(such that they file the Notice of Appeal, the Record and Memorandum of Appeal within 7 days) while other litigants and advocates may elect to apply both the timelines under the PPADA and then apply the Court of Appeal Rules (file the Notice of Appeal within 7 days in line with the PPADA and then file Record and Memorandum of Appeal within 60 days in line with the Court of Appeal Rules).
• The latter case begs the questions:
  • • Does the filing of the Notice of Appeal amount to filing an appeal under Section 175 (4) of the PPADA?

• • • Is there need to develop Court of Appeal Rules to specifically deal with appeals relating to public procurement and asset disposal disputes?

Clarity is needed on these conflicting timelines. In the meantime, though onerous-especially where the documents (judgement, decree & proceedings) from the High Court are not availed in good time – it is possible to file the Notice of Appeal and the Record of Appeal within 7 days from the date of the decision of the High Court.

In practice and noting the constricted timelines, it may not be possible to include the proceedings (the trial Judge’s notes of the hearing and the transcript of any shorthand notes taken at the trial) before the High Court in the Record of Appeal in the first instance. But, Rule 8 (5) of the Court of Appeal Rules allows the appellant to file a supplementary Record of Appeal if the High Court does not avail all documents in good time.

We are watching out on this developing jurisprudence with regard to timelines for filing, hearing and determining public procurement and asset disposal disputes, which until overturned, remains good law.