Automated Summary
Key Facts
The High Court of Kenya dismissed a preliminary objection arguing that Section 175(3) and (5) of the Public Procurement and Asset Disposal Act 2015 (PPADA) unconstitutionally limited judicial review timelines. The court held that the 45-day deadline for determining judicial review applications in public procurement cases violated the right to access justice (Article 48) and the independence of the judiciary (Articles 165, 151). The ruling emphasized that the judiciary must retain discretion to manage cases and that strict timelines risked undermining judicial independence and quality of decisions. The court found the PPADA provisions inconsistent with constitutional principles and allowed the judicial review to proceed despite the time lapse.
Issues
- Whether Section 175(3) and (5) of PPADA is in tandem with the applicable law regarding judicial review procedures.
- Whether Section 175(3) and (5) of PPADA is unconstitutional for limiting the court's jurisdiction to 45 days.
- Whether the public interest of finality in public procurement procedures outweighs the need for judicial adjudication.
- Whether Section 175(3) and (5) of the Public Procurement and Asset Disposal Act (PPADA) ousts the jurisdiction of the court in judicial review proceedings.
Holdings
- The court dismissed the preliminary objection, finding it misconceived and not aligned with the reality of judicial workload and constitutional principles. It ruled that Section 175(3) and (5) of the Public Procurement and Asset Disposal Act, 2015 are unconstitutional as they violate Articles 48 and 50 of the Constitution (access to justice, fair hearing) and undermine judicial independence under Articles 165 and 151. The court retained jurisdiction to hear the case despite the 45-day lapse, emphasizing that justice must not be delayed and that the judiciary must operate independently of legislative timelines.
- The court referenced precedents (e.g., Selex Sistemi Integrati, KRA case) to support its conclusion that ouster clauses like Section 175(3) and (5) must be interpreted restrictively to preserve judicial jurisdiction. It highlighted the importance of purposive statutory interpretation to avoid injustice and align with constitutional mandates.
- The court held that the 45-day timeline in Section 175(3) and (5) is impractical given the judiciary's case load and resource constraints. It emphasized that the Constitution mandates courts to prioritize justice over rigid timelines and that the section's language unreasonably imposes unfair labor conditions on judges, violating Articles 30 and 41 of the Constitution.
Remedies
The court found the preliminary objection to be misconceived and not in touch with reality, thereby dismissing it and affirming its jurisdiction to hear the judicial review proceedings filed over 45 days ago.
Legal Principles
- The court adopted a purposive approach to interpret Section 175 of the PPADA, concluding that literal compliance with the 45-day timeline would result in injustice. It prioritized the constitutional intent of ensuring fair and timely adjudication over strict statutory deadlines.
- The court held that Section 175(3) and (5) of the Public Procurement and Asset Disposal Act unconstitutionally encroached on the judiciary's independence by imposing rigid timelines for judicial review, violating the separation of powers under Articles 165 and 151 of the Constitution.
- The court emphasized the importance of the Rule of Law as a constitutional mandate, ensuring that all actions by public bodies are lawful and subject to judicial oversight. It highlighted the judiciary's role in upholding the Constitution as the supreme law of the land, invalidating any inconsistent provisions.
- The court determined that the High Court retains jurisdiction to hear judicial review applications even if they exceed the 45-day timeline in the Act, as the Act's provisions were found to be ultra vires the Constitution. It emphasized that justice must not be delayed.
Precedent Name
- Regina Vs Soneji & Another
- Nothman V Barnet Council
- Blic vs Public Procurement Administrative Review Board & Another Exparte Selex Sistemi Integrati
- Senator John Akpanudo Edehe & 2 Others vs Goodwill Obot Akbabio & 3 Others
- Republic vs KRA Exparte Webb Fontaine Group FZ-LLC & Others
- Joseph C. Kiptoo & Another vs Kericho Water & Sewerage Company Ltd
- Christine Talaam Vs Jennifer Nanamut Koipiri & URP & IEBC
- Public Procurement Administrative Review Board & another Exparte Wajir County Government
- Republic V Public Procurement Administrative Review Board & Another Exparte Selex Sistemi Integrati
Cited Statute
- Constitution of Kenya
- Law Reform Act
- Public Procurement and Asset Disposal Act, 2015
- Interpretation and General Provisions Act
- Fair Administrative Action Act No. 4 of 2015
- Civil Procedure Rules
- Public Procurement and Disposal Act, 2005 (repealed)
Judge Name
R.E. Aburili
Passage Text
- 140. I find that this court has jurisdiction to hear and determine the judicial review proceedings herein which were filed over 45 days ago.
- 103. ... that section 175(3) and (5) of the Public Procurement and Asset Disposal Act No. 33 of 2015 is inconsistent with the values purposes, values and principles of the Constitution and therefore unconstitutional and inconsequential to these proceedings. Accordingly, the decision of the Review Board, the 1st respondent herein has not taken effect by operation of law as cited by the 2nd respondent.
- 112. The Regina V Soneji (supra) case captured the above point more succinctly as follows a page 31 of the judgment that: '65. The traditional consequence... late service did not bar his appeal.'