ADK Technologies Ltd in Consortium with Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 others (Civil Appeal E598 of 2021) [2022] KECA 407 (KLR) (4 March 2022) (Judgment)
Neutral citation:
[2022] KECA 407 (KLR)
Republic of Kenya
Civil Appeal E598 of 2021
S ole Kantai, K.I Laibuta & K M'Inoti, JJA
March 4, 2022
Between
ADK Technologies Ltd in Consortium with Computer Technologies Ltd
Appellant
and
Public Procurement Administrative Review Board
1st Respondent
Principal Secretary National Treasury & Planning
2nd Respondent
National Treasury & Planning
3rd Respondent
Kingsway Business Systems Ltd In Consortium with Kobby Technologies Ltd & Inplenion East Africa Ltd
4th Respondent
ADK Technologies Limited
5th Respondent
(Appeal from the Judgment and Decree of the High Court of Kenya (Ngaah, J.) dated 9th April 2021 in (HCJR Case No. E027 of 2021))
Judgment
1.At the hearing of this appeal, a question arose whether this Court has jurisdiction to hear an appeal arising from the Public Procurement and Asset Disposal Act (‘the PPAD Act”) after the expiry of 45 days from the date of the decision appealed from. As was explained in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, a question of jurisdiction is a threshold question and may be raised by a party or by the court on its own motion and must be decided forthwith on the evidence before the court. We are therefore obliged to determine the jurisdictional point before we proceed any further with consideration of the merits of the appeal.
2.The appellant, who describes itself as ADK Technologies Ltd in Consortium with Computer Technologies Ltd., was an unsuccessful bidder for “Tender No. TNT/049/2019-2020 Tender for the Provision of Outside Support for IFMIS E-Procurement and Independent Integrated Financial Management System for Semiautonomous Government Agency (SAGA) Lot1” floated by the 3rd respondent, the National Treasury and Planning. The appellant was aggrieved by the 3rd respondent’s decision not to award it the tender and on 8th February 2021 applied tothe 1st respondent, the Public Procurement Administrative Review Board (PPARB)to review the decision of the 1st respondent.
3.On 1st March 2021, the PPARB struck out the appellant’s request for review after the same was disowned by the 5th Respondent, ADK Technologies Ltd, in whose name it had been made. The appellant further was aggrieved and commenced judicial review proceedings in the High Court for an order of certiorari to quash the decision of the PPARB, an order of prohibition to stop the award of the tender and an order of mandamus to compel the PPARAB to hear its request for review.
4.A preliminary objection was taken bythe 4th respondent Kingsway Business Systems Ltd in Consortium with Lobby Technologies Ltd & Inplenion East Africa Ltd, who were the successful bidders, on the basis that the application was defective for want of authority to plead and lack of verifying affidavit. After hearing the objection, the learned judge sustained the same and struck out the application in a judgment dated 9th April 2021, the subject of this appeal.
5.From the record the appellant lodged its notice of appeal on 13th April 2021 and the record of 17th October 2021, some 191 days from the date of the decision of the High Court. At the hearing of the appeal on 2nd March 2021, the Court requested the parties to address the question whether it had jurisdiction to hear this appeal in view of the provisions of section 175(4) and (5) of the PPAD Act.
6.Mr. Kiprono,learned counsel for the appellant, submitted that the appeal was filed in time in accordance with the Court of Appeal Rules. He contended that once the appeal is filed, time stops running for purposes of section 175 (4). In his view, nothing stops this Court from hearing and determining the appeal because section 175(4) is not cast in stone. Counsel added that it was not clear whether the 45 days are to be computed from the date of the judgment of the High Court or from the date of the filing of the appeal.
7.Ms. Chilaka, learned counsel for the 1st, 2nd and 3rd respondents who appeared and introduced herself virtually, left the virtual platform soon thereafter and she was not available to make submissions when she was called upon to do so. On her part, Ms. Waiganjo, learned counsel for the 4th respondent, submitted that the prescribed time for hearing the appeal had lapsed and that the Court did not have jurisdiction to entertain it. She referred to section 5 of the PPAD Act which provides that in case of any inconsistency between the Act and any other legislation on matters of procurement and assets disposal, the PPAD Act shall prevail. On the basis of that provision, she disagreed with the appellant that the appeal was validly before the Court under the Court of Appeal Rules. Lastly, we heard Ms. Mukua,learned counsel for the 5th respondent, who associated herself with the 4th respondent’s submissions.
8.We have carefully considered the question of our jurisdiction in this appeal. Section 175 of the Public Procurement and Asset Disposal Act provides as follows:
9.Section 175 has been the subject of consideration by this Court in Aprim Consultants v. Parliamentary Service Commission & Another, CA. No. E039 of 2021 (“the Aprim case”) and in The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others, CA. No. E012 of 2022 (“the TSK Electronica case”). Indeed, the last decision was delivered barely three days ago, on 28th February
10.In the Aprima case, the Court stated that section 175 was couched in mandatory terms. The Court expressed itself thus:
11.The same reasoning applies with equal force to section 175(4) which addresses procurement appeals in this Court. In the TSK Electronica case the Court agreed with the reasoning in the Aprim case, and stated thus:In this appeal, the delay has been occasioned by the appellant itself. It filed the appeal 191 days from the date of the decision of the High Court rather than within the seven days prescribed by the PPAD Act. Even if one were to be charitable, for which there is no basis, and agree with the appellant that computation of the 45 days starts from the date of filing the appeal, 45 days from 17th October 2021 elapsed more than one year ago.
12.Taking into account all the foregoing, and the consistent decisions of this Court on the point, we are satisfied that this Court no longer has jurisdiction to hear and determine this appeal. The appeal is accordingly struck out with costs to the respondents. It is so ordered.
DATED AT NAIROBI THIS 4TH DAY OF MARCH, 2022K. M’INOTI...................................JUDGE OF APPEALS. ole KANTAI...................................JUDGE OF APPEALDR. K. I. LAIBUTTA...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR