https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12872

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **JUDICIAL REVIEW APPLICATION NO. E003 OF 2026** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION** **AND** **IN THE MATTER OF THE DECISION BY THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD IN APPLICATION NO. 58 OF 2026** **AND** **IN THE MATTER OF SECTIONS 63, 167, 168, 173 AND 175 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015** **AND** **IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT AND SECTION 154(2) OF THE PUBLIC FINANCE MANAGEMENT ACT,2012** **AND** **IN THE MATTER OF ARTICLES 10, 22, 23(3)(f), 43(1)(a), 47(1), 50(1), 165(6) & (7) AND 227 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF TENDER NO. CGN/MOH/ONT/021/2025-2026 - PROVISION OF COMPREHENSIVE CLEANING & GARDENING SERVICES** **BETWEEN** **THE ACCOUNTING OFFICER** **COUNTY GOVERNMENT OF NAKURU,** **DEPARTMENT OF HEALTH SERVICES............1ST APPLICANT** **COUNTY GOVERNMENT OF NAKURU,** **DEPARTMENT OF HEALTH SERVICES............2ND APPLICANT** **AND** **PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD..............................................................RESPONDENT** **AND** **THE GARDENS & WEDDING** **CENTRE LTD.....................................1ST INTERESTED PARTY** **DELKI SUPPLIES AND** **GENERAL SERVICES…………………....2ND INTERESTED PARTY** **RULING** [1] Before this Court for determination is a Notice of Preliminary Objection dated 26th July 2026 filed by the 1st Interested Party, The Gardens & Wedding Centre Ltd. The Preliminary Objection challenges the jurisdiction of this Court to hear and determine the Applicants' substantive Notice of Motion dated 28th May 2026, on the ground that the application was not determined within the forty-five (45) day timeline prescribed by Section 175(3) of the Public Procurement and Asset Disposal Act, 2015 (hereinafter "the Act"). [2] The Applicants oppose the Preliminary Objection, contending that the delay was occasioned by the Court's own scheduling and not by any act or omission on their part. [3] I have carefully considered the Preliminary Objection, the written submissions of the parties, the relevant legal authorities cited and the applicable law. [4] The Applicants are the Procuring Entity in Tender No. CGN/MOH/ONT/021/2025-2026 for the Provision of Comprehensive Cleaning and Gardening Services. On 13th May 2026, the Public Procurement Administrative Review Board delivered a decision nullifying the Applicants' termination of the procurement proceedings, directing re-evaluation within twenty-one days, referring the matter to the Director-General of PPRA for investigation, and awarding costs of KES 150,000 against the Applicants. [5] Aggrieved by that decision, the Applicants moved this Court on 18th May 2026, seeking leave to institute judicial review proceedings. The application was filed within the fourteen day period prescribed by Section 175(1) of the Act. [6] On 26th May 2026, this Court granted leave and directed that the leave do operate as a stay of the Board's decision. The Court further directed the Applicants to file their substantive Motion within five days. The Court also fixed the matter for mention on 28th July 2026, for purposes of confirming compliance and fixing a judgment date. [7] The Applicants filed their substantive Motion on 1st June 2026, within the five day period directed by the Court. The parties thereafter filed their respective responses and submissions in accordance with the timelines set by the Court. [8] On 26th July 2026, the 1st Interested Party filed the instant Preliminary Objection, contending that the Court's jurisdiction had been ousted by the lapse of the forty-five day period prescribed by Section 175(3) of the Act. [9] The 1st Interested Party's Preliminary Objection is anchored on three grounds. First, that the Court lacks jurisdiction to hear and determine the Applicants' Motion. Second, that the Motion is time-barred by reason of Section 175(3) and (5) of the Act. Third, that there is no competent application before the Court for the same reason. In support of its objection, the 1st Interested Party submitted that the Applicants filed their substantive Motion on 1st June 2026, and that the forty-five day period for determination expired on 16th July 2026. It was contended that by operation of Section 175(5) of the Act, the Board's decision became final and binding on all parties, thereby ousting the Court's jurisdiction. The 1st Interested Party placed reliance on the Court of Appeal decisions in ***Risk Africa Innovatis Limited v Smartmatic International Holdings B.V.A & 3 others (Civil Appeal (Application) E008 of 2022) [2022] KECA 427 (KLR)*** and ***Aprim Consultants v Parliamentary Service Commission & Another, Civil Appeal No. E039 of 2021***, for the proposition that the provisions of Section 175 are plain and unambiguous, and that the timelines are cast in stone. [10] The 1st Interested Party further relied on the High Court decision in ***Erdemann Properties Limited v Public Procurement Administrative Review Board & another (Application 132 of 2020) [2022] KEHC 18059 (KLR),*** where Ngaah J. quoted the Court of Appeal's holding that the Court's jurisdiction is time-bound and ceases by effluxion of time once the forty-five day period expires.The 1st Interested Party further submitted that this Court is bound by the doctrine of stare decisis to follow the decisions of the Court of Appeal in Aprim Consultants and Risk Africa Innovatis Limited. It was contended that the suit ought to have been determined by 16th July 2026, and since it was not, the suit has effectively died and the Court no longer has jurisdiction. [11] The Applicants submitted that that the preliminary objection is misconceived and ought to be dismissed. They submitted that they complied with every timeline imposed upon them by the Act and by this Court. Their ex parte Chamber Summons was filed on 18th May 2026, well within the fourteen days prescribed by Section 175(1) of the Act. Their substantive Motion was filed on 1st June 2026, within the five days directed by this Court's directions of 26th May 2026. They thereafter filed all responses and submissions on time and did not seek any adjournment.The Applicants further submit that the pendency of the matter beyond the forty-five day window is attributable solely to this Court's own case management diary. In the directions of 26th May 2026, this Court itself fixed the mention date for 28th July 2026, which fell outside the forty-five day window. The Applicants had no involvement in the fixing of that date and did nothing to contribute to the passage of time. [12] The Applicants place reliance on the exception recognized by Ngaah J. in ***Erdemann Properties Limited (supra)*** at paragraph 13. In that decision, the learned Judge held that where circumstances are beyond the control of the Court such that a decision cannot be delivered within the prescribed timelines, the Court should still deliver its decision in tribute to the constitutional right of access to justice guaranteed by Article 48 of the Constitution.The Applicants contend that the distinction between Erdemann and the present case is decisive: in Erdemann, the parties were lethargic in complying with the Court's directions, whereas in the present case, every party complied with every direction within time, and the delay is entirely Court-occasioned. [13] The Applicants further rely on the five-judge bench decision of the Court of Appeal in Kenya ***Ports Authority v Public Procurement Administrative Review Board & 2 others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR)***, which recognized the principle in the Martha Karua case: that where the failure to determine a matter within the prescribed time is occasioned not by the litigant but by an organ of the State, the denial of a determination on the merits amounts to a denial of the right of access to justice. The Applicants invoke the maxim *actus curiae neminem gravabit*, that an act of the Court shall prejudice no one. They submit that where a party has placed itself entirely in the hands of the Court, complied with every direction, and awaits only the Court's pronouncement, that party cannot be made to suffer for delay in that pronouncement. [14] Finally, the Applicants point to the conduct of the 1st Interested Party. The Preliminary Objection was filed on 26th July 2026, some ten days after the date on which the 1st Interested Party contends the Court's jurisdiction lapsed, and on the eve of the mention which the Court fixed on 28th July 2026. The 1st Interested Party participated fully in the proceedings, filed its Response, and raised no objection to the Court's timetable when the directions were issued. A party who acquiesces in the Court's timetable cannot be heard to invoke the lapse of the very timeline in which it acquiesced. [15] The sole issue for determination is whether this Court's jurisdiction to hear and determine the Applicants' substantive Motion has been ousted by the lapse of the forty-five day period prescribed by Section 175(3) of the Act. [16] The importance of jurisdiction cannot be overstated. The Court of Appeal in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1*** established the foundational principle that jurisdiction is everything, and that without it, a court has no power to make one more step. However, the question here is not whether this Court has inherent jurisdiction to entertain judicial review applications, that jurisdiction is clearly conferred by Article 165(3)(a) of the Constitution and Section 175(1) of the Public Procurement and Asset Disposal Act. The question is whether that jurisdiction has been ousted by the operation of Section 175(5) of the Public Procurement and Asset Disposal Act. [17] Section 175 of the Act provides as follows: *(1) A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.* *(2) The application for a judicial review shall be accepted only after the aggrieved party pays a percentage of the contract value as security fee as shall be prescribed in Regulations.* *(3) The High Court shall determine the judicial review application within forty-five days after such application.* *(4) A person aggrieved by the decision of the High Court may appeal to the Court of Appeal within seven days of such decision and the Court of Appeal shall make a decision within forty-five days which decision shall be final.* *(5) If either the High Court or the Court of Appeal fails to make a decision within the prescribed timeline under subsection (3) or (4), the decision of the Review Board shall be final and binding to all parties.* *(6) A party to the review which disobeys the decision of the Review Board or the High Court or the Court of Appeal shall be in breach of this Act and any action by such party contrary to the decision of the Review Board or the High Court or the Court of Appeal shall be null and void.* *(7) Where a decision of the Review Board has been quashed, the High Court shall not impose costs on either party.* [18] The Court of Appeal in ***Aprim Consultants (supra)*** held that the provisions of Section 175 are plain and unambiguous, and that the timelines are cast in stone. In ***Risk Africa Innovatis Limited (supra)***, the Court of Appeal associated itself fully with those findings. Ngaah J. in ***Erdemann Properties Limited (supra)*** quoted the Court of Appeal's holding that the Court's jurisdiction is time-bound and ceases by effluxion of time once the forty-five day period expires, and that any judgment returned outside time would be without jurisdiction and therefore a nullity. [19] However, critically, Ngaah J. recognized an important exception. The learned Judge held that where circumstances are beyond the control of the Court such that a decision cannot be delivered within the prescribed timelines, the Court should not be rendered helpless. In such circumstances, the Court should still deliver its decision outside the prescribed timelines, in tribute to the constitutional right of a litigant to access justice as guaranteed by Article 48 of the Constitution. In ***Erdemann***, the exception did not avail the applicant because the parties were lethargic in complying with the Court's directions, and that lethargy caused the delay. In the present case, the situation is entirely different. Every party complied with every direction of this Court within time. The Applicants filed their ex parte application within fourteen days, their substantive Motion within five days of the Court's directions, and all responses and submissions on time. They did not seek any adjournment or cause any delay. [20] The sole reason the matter remains pending beyond the forty-five day window is that this Court itself fixed the mention date for 28th July 2026, a date that fell outside the forty-five day window. The Applicants had no hand in the fixing of that date.This Court further takes guidance from the five-judge bench decision in ***Kenya Ports Authority v Public Procurement Administrative Review Board & 2 others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR***). At paragraph 45, the Court recognized the principle established in the Martha Karua case: that where the failure to determine a matter within the prescribed time is occasioned not by the litigant but by an organ of the State, the denial of a determination on the merits amounts to a denial of the right of access to justice. [21] To uphold the present Preliminary Objection would be to adopt a construction that extinguishes a diligent litigant's suit by reason of the Court's own scheduling. That would be a denial of the right of access to justice, contrary to Article 48 of the Constitution. The maxim *actus curiae neminem gravabit*, that an act of the Court shall prejudice no one is directly applicable. Where a party has placed itself entirely in the hands of the Court and awaits only the Court's pronouncement, that party cannot be made to suffer for delay in that pronouncement. Article 259(1) of the Constitution requires that all law be interpreted in a manner that promotes the Constitution's purposes, values and principles. As between two constructions of Section 175(3) and (5), one that extinguishes a diligent litigant's suit by reason of the Court's own calendar, and one that permits the Court to proceed to judgment where the delay is beyond the control of the Court and the parties;the Constitution compels the latter. [22] This Court also notes the observation of the Court of Appeal in ***Aprim Consultants*** that the wisdom of so short a timeline "may be fairly questioned" given the sheer number of judicial review matters and the limited number of judges. That candid acknowledgement underscores the need for a purposive construction that does not visit the consequences of the Court's diary upon a blameless litigant. [23] Finally, this Court notes that the 1st Interested Party's Preliminary Objection was filed on 26th July 2026, ten days after the date on which it contends the Court's jurisdiction lapsed. The 1st Interested Party participated fully in the proceedings, filed its response, and raised no objection to the Court's timetable when the directions were issued. A party who acquiesces in the Court's timetable cannot, at the door of judgment, be heard to invoke the lapse of the very timeline in which it acquiesced. The 1st Interested Party's reliance on Risk Africa Innovatis Limited and Aprim Consultants is misplaced. Both cases are distinguishable on the ground that the delay was caused by the litigant's own default. In Risk Africa, the appellant filed its appeal out of time. In Aprim, no Court-occasioned delay was demonstrated. In the present case, the delay is Court-occasioned, and the Applicants are blameless. [24] In light of the foregoing, I make the following orders: ***a) The Notice of Preliminary Objection dated 26th July 2026 lacks merit and is hereby dismissed with costs to the 1st and 2nd applicants to be borne by the 1st Interested party.*** ***b) The substantive Notice of Motion dated 28th May 2026 shall be heard and determined on its merits.*** It is so ordered. **Dated, signed and delivered at Nakuru this 13th day of August, 2026** **J. K. SERGON** **JUDGE** **In the presence of:** Ruto C/A Mogire for Interested party Wandera for Applicant