Automated Summary
Key Facts
The Court of Appeal in Kenya is reviewing whether to overrule its previous decision in Aprim Consultants v. Parliamentary Service Commission (2021) regarding the constitutionality of section 175(3) and (5) of the Public Procurement & Assets Disposal Act. These subsections prescribe strict timelines for the High Court and Court of Appeal to resolve public procurement disputes, with failure to comply rendering the Review Board's decision final. The Kenya Ports Authority (KPA) appeals a High Court judgment (2017) that declared these timelines unconstitutional, arguing the Court of Appeal's earlier validation of the timelines in the Aprim case was based on a misapprehension that the High Court's declaration was valid. The High Court had quashed the Review Board's decision in a procurement dispute involving Brooms Ltd. and Atlantic Intertrade Ltd., directing KPA to restart the tender process. KPA contends its appeal is time-barred only if the Aprim case is upheld, and seeks to strike down the Aprim decision as per incuriam.
Issues
- The central issue in the appeal was whether the Court of Appeal should overrule its previous decision in Aprim Consultants v. Parliamentary Service Commission & Another (Civil Appeal No. E039 of 2021), which upheld the validity of section 175(3) and (5) of the Public Procurement & Assets Disposal Act. These subsections prescribe strict timelines for the High Court and the Court of Appeal to determine public procurement disputes, with the consequence that any decision outside these timelines is null and void. The current appeal argued that the Aprim decision was per incuriam because the High Court had already declared section 175(3) and (5) unconstitutional in a prior judgment, which the Aprim Court did not consider. The Court of Appeal had to determine if there was sufficient grounds to depart from the Aprim precedent, especially considering the High Court's declaration and the principles of stare decisis.
- A secondary issue was the procedural validity of the High Court's declaration that section 175(3) and (5) of the Public Procurement & Assets Disposal Act were unconstitutional. The Court of Appeal noted that the High Court's decision to declare these provisions unconstitutional was not based on the traditional judicial review process under the Law Reform Act and Order 53 of the Civil Procedure Rules. The Kenya Ports Authority (KPA) had not sought leave to amend its application to include the constitutionality of the timelines, which are not part of the original judicial review application. This raised questions about whether the High Court had the authority to make such a declaration within the framework of the judicial review, as the issue was not properly pleaded or addressed in the initial stages of the proceedings.
Holdings
The Court of Appeal upheld the validity of sections 175(3) and (5) of the Public Procurement & Assets Disposal Act, as confirmed in the Aprim case, and refused to depart from that decision. The court struck out the appeal for being filed outside the prescribed timelines, emphasizing that the High Court's declaration of these sections unconstitutional lacked proper procedural basis and was of doubtful authority.
Remedies
- The appeal is struck out with no orders on costs.
- No orders on costs are made in the case.
Legal Principles
The court applied judicial review principles to assess the constitutionality of statutory timelines in public procurement disputes. It concluded that the High Court's declaration of section 175(3) and (5) as unconstitutional was invalid due to procedural misalignment with the judicial review framework, emphasizing adherence to prescribed timelines as a legitimate legislative function.
Precedent Name
- Dande & 3 Others v. Inspector General, National Police Service & 5 Others
- Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 Others
- Martha Wangari Karua v. Independent Electoral and Boundaries Commission & 3 Others
- Eric V.J. Makokha & others v Lawrence Sagini & 2 Others
- Attorney General of Kenya v. Martha Wangari Karua & 2 Others
- Republic v. Public Procurement Administrative Review Board ex parte Techno Relief Services Ltd
- Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others
- Evans Odhiambo Kidero & 5 Others v Ferdinand Waititu & 4 Others
- Aprim Consultants v. Parliamentary Service Commission
- Otieno & Another v. Council for Legal Education
Cited Statute
- Public Procurement & Assets Disposal Act
- Constitution of Kenya
- Fair Administrative Action Act No. 4 of 2015
- Civil Procedure Act
- Treaty for the Establishment of the East African Community
Judge Name
- MSA Makhandia
- K M'Inoti
- M Ngugi
- F Tuiyot
- J M Mativo
Passage Text
- contrary to the submissions by KPA, the High Court, in the matter that gave rise to this appeal, did not declare the entire section 175 of the Act unconstitutional. It was only section 175(3) and (5) which provide timelines within which the High Court and this Court should hear and determine disputes arising from public procurements that were declared unconstitutional.
- I have no hesitation in declaring which I hereby do that section 175(3) and (5) of the Public Procurement and Asset Disposals Act, 2015, is unconstitutional to the extent that it purports to restrict the timelines within which judicial review proceedings are to be determined and is therefore inconsequential.
- the jurisdiction of the Election Court is linked to timelines. Consequently, the trial Court lacked jurisdiction to entertain the electoral question remitted by the Court of Appeal, once its six-month mandate had lapsed.