https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9624

Beyond Trading Company Ltd v Accounting Officer - Kenya Urban Road Authority (KURA) & another (Petition E381 of 2025) [2026] KEHC 9624 (KLR) (Constitutional and Human Rights) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9624 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E381 of 2025 RE Aburili, J June 26, 2026 IN THE MATTER OF: ARTICLES 1, 2, 3, 4, 10, 19, 20, 21, 22, 23, 24, 25, 27, 28. 35, 40, 47, 50, 159, 165, 201, 227, 232, 258, AND 259 OF THE CONSTITUTION OF KENYA: AND IN THE MATTER OF: AND VIOLATION OF ARTICLES 1, 2, 3, 4, 10, 19, 20, 21, 22. 23, 24, 25, 27, 28, 35, 40, 47, 50, 159, 165, 201, 227, 232. 258. AND 259 OF THE CONSTITUTION OF KENYA: AND IN THE MATTER OF: INTERPRETATION AND APPLICATION OF THE ARTICLES 35, 47, 50. AND 227 OF CONSTITUTION OF KENYA: AND IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURES RULES 2013: AND IN THE MATTER OF: AND THE FAIR ADMINISTRATIVE ACTIONS ACT: IN THE MATTER OF: SECTIONS 4(2)(F), 27, 28, 167, 174, AND 175 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT: AND IN THE MATTER OF: REGULATIONS 4(2)(F) OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL REGULATIONS: AND IN THE MATTER OF: PPARB APPLICATION NO. 61 OF 2025; Page 1 of 19 AND IN THE MATTER OF: Tender No: KURA/DEV/HQ/426/2024-2025 PROJECT NO: KEN-5 FOR ESTABLISHMENT OF BUS RAPID TRANSIT LINE 5 PROJECT. Between Beyond Trading Company Limited Petitioner and Accounting Officer - Kenya Urban Road Authority (KURA) 1st Respondent Public Procurement Administrative Review Board (PPARB) 2nd Respondent Ruling 1.This Ruling determines the Notice of Preliminary Objection Dated 20th April, 2026, filed by the Respondents opposing the amended Petition and the petitioner’s application for conservatory orders dated 22nd June 32025 in which petition, the Petitioner sought the following prayers: -a.A declaration that the section 4 (2) (f) of the Public Procurement and Asset Disposal Act does not oust the Constitution of Kenya or its application.b.A declaration that the section 4 (2) (f) of the Public Procurement and Asset Disposal Act does not automatically oust the jurisdiction of the Public Procurement Administrative Review Board to apply provisions of the Constitution in regard to instances of constitutional violations in public procurement proceedings or at all.c.A declaration that the 1st and 2nd Respondents violated the rights and fundamental freedoms of the Petitioner.d.A declaration that the 1st and 2nd Respondents violated Articles 10, 25, 27, 35, 40, 47, 50, 159, 201, 227, 258, and 259 of the Constitution.e.A declaration that the impeachment process as against the 1st Interested Party undertaken by the 1st and 2nd Respondents, in view of the impugned, improper, ineffective, and meaningless public participation held on 4th and 5th October 2024 was unconstitutional and therefore void.f.An order of certiorari do issue to bring up before this Honourable Court to quash the decision of the 1st Respondent contained in its letter of 2nd May 2025 purporting to justify its decision to reject the Petitioner’s bid in regard to Tender No:Kura/Dev/HQ/426/2024-2025 Project No: KEN - 5 for Establishment of Bus Rapid Transit Line 5 Project.g.An order of certiorari do issue to bring up before this Honourable Court to quash the decision of the 1st Respondent of 17th April 2025 refusing to accept the submission of the Petitioner’s bid in regard to Tender No: Kura/Dev/HQ/426/2024-2025 Project No: KEN-5 for Establishment of Bus Rapid Transit Line 5 Project.h.An order of certiorari do issue to bring up before this Honourable Court to quash the decision of the 2nd Respondent of 6th May 2025 in Application 61 of 2025-Application No. 61 of 2025 between CK Solution Co. Ltd in Joint Venture with Kumkang Construction Company Ltd and Beyond Trading Company Limited -and- Accounting Officer Kenya Urban Roads Authority (KURA).i.An order of prohibition do issue directed at the 1st Respondent prohibiting it from party entering into a contract with any Kura/Dev/HQ/426/2024-2025 PROJECT in regard to Tender No: No: Kura/Dev/HQ/426/2024-2025 Project No: KEN - 5 for Establishment of Bus Rapid Transit Line 5 Project.j.An order do issue directed at the 1ª Respondent setting aside, vacating. And/or nullifying any contract issued to any party in regard to Tender No: Kura/Dev/HQ/426/2024-2025 Project No: KEN - 5 for Establishment of Bus Rapid Transit Line 5 Project.k.An order of mandamus do issue directed at the 1” Respondent requiring it to re-tender Tender No: Kura/Dev/HQ/426/2024-2025 Project No: KEN – 5 for Establishment of Bus Rapid Transit Line 5 Project.l.Any other order(s) as this Honorable Court shall deem just and expedient in the circumstances.m.Costs of this suit 2.The Respondents filed a Notice of Preliminary Objection dated 20th April 2026 in response to the Petition and to the Application dated 18th November 2025 for conservatory orders, opposing both the Application and Petition before the Court on the following grounds: -1.That the Court is devoid of jurisdiction to entertain the Application dated 18th November 2025 and the entire Petition.2.That the Application and Petition offends the provisions of Section 175(3) of the Public Procurement and Asset Disposal Act. (see Aprim Consultants v Parliamentary Service Commission Civil Appeal No. E309 of 2021). 3.Parties took directions before this Court on 20th April 2026 to argue the Preliminary Objection orally. On 29th April 2026, Mr. Munene, Counsel for the Respondents submitted that their Preliminary Objection was premised on Section 175 (3) of the Public Procurement and Asset Disposal Act and asserted that the matter ought to have been filed within 14 days from the date of the impugned decision being 6th May 2025. He submitted that the Petition was instead filed on 23rd June 2025 and the decision ought to have been delivered on 7th August 2025 when 45 days ended. 4.It was submitted that the Court is devoid of jurisdiction and the Petition should be struck out for want of jurisdiction. Counsel relied on the case of Aprim Consultants v Parliamentary Service Commission Civil Appeal No. E309 of 2021 where the court outlined timelines for hearing and determining public procurement matters. 5.Ms. Mwangi for the Petitioner countered the said arguments that the Board’s decision was made on 6th May 2025 and submitted that it was made on 6th June 2025. She argued that Section 175 (3) of the PPADA is not superior to Articles 47, 48 and 50 of the Constitution and that the language of the Act does not oust the jurisdiction of the Court. It was submitted that there are no consequences for failure to hear and determine the matter within 45 days and that, while expeditious determination is key, the right to be heard and access justice is equally key. 6.It was submitted that the Court had to employ a balanced technique due to the present constitutional order. She added that it was not the Petitioner’s fault that the matter went beyond 45 days and that the limitation was ambiguous. 7.It is also submitted that their Petition is dated 19th June 2025 and the amended Petition is dated 21st June 2025. That they sought certiorari to quash the Board’s decision and declarations for violation of the Petitioner’s rights. It is asserted that the Procuring Entity rejected their client’s bids for the tender and their client filed a request for review to the 2nd Respondent, who then declined jurisdiction and dismissed their request. 8.It is their submission that the Board should not have declined jurisdiction and add that their Petition was filed on 23rd June 2025 which was 17 days after the Board’s decision. Analysis and Determination 9.Having considered the preliminary objection and the submissions by Counsel for the parties, the main issue for my determination is whether the Notice of Preliminary Objection is merited. The locus classicus case on what constitutes a Preliminary Objection is the Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd [1969] E.A. 696. per Law, JA at p.700 that:“I agree that the application for the suit to be dismissed for want of prosecution should have taken the form of a motion, and not that of a ‘preliminary objection’ which it was not. So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”Newbold, P stated at p.701: -“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.” 10.The core of the Preliminary Objection is that this Court lacks jurisdiction to entertain the Application and the Petition as a whole because of the provisions of Section 175 (3) of the Public Procurement and Asset Disposal Act. The above section provides:175.Right to judicial review to procurement1.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. 11.The above provisions of the law are concise on the recourse that a party aggrieved by the decision of the Board-/2nd Respondent has. The Act provides that the legal mechanism for redress is such that the parties must proceed by way of judicial review unless there is a clear demonstration that their grievance raises substantial constitutional questions. In other words, parties cannot rush to the Constitutional Court to seek redress for issues that could be determined through statutorily governed dispute resolution mechanisms. Even if the aggrieved party was to approach the court by way of the constitutional petition seeking for reliefs, they must adhere to the timelines stipulated in section 175 of the Public Procurement and Asset Disposal Act. 12.In Speaker of National Assembly v Karume [1992] KLR 21 in this regard, where the Court of Appeal aptly held as follows: -“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” 13.The principle herein is that according to the Section 175 of the Act, the Petitioner had to approach the Judicial Review Court and not circumvent the said jurisdiction by seeking remedies in the constitutional court unless there was a specific reason to, or that they had established exceptions as held in the case of Antony Miano & others v Attorney General & others [2021] eKLR where Mrima J. held thus: -“Having said so, and in unique circumstances of this case, and further being alive to the legal position that statutory provisions ousting Court’s jurisdiction must be construed restrictively, I find and hold that, the Petitioners have failed to demonstrate any of the exceptions to the doctrine of exhaustion. This is one such case that, even if there are Constitutional issues raised in the Petition, such issues ought to wait the consideration of the matters before the Tribunal. The Petitioners, in the first instance, approach the Tribunal for resolution of the dispute.” 14.I find that the Petitioner herein has neither demonstrated reasons for or made a justification for invoking the Court’s constitutional jurisdiction or ousting the provisions of Section 175 (3) of the Public Procurement and Disposal Act. The argument that the Act is subservient to the Constitution, particularly Articles 47, 48 and 50 of the Constitution does not hold in this regard even though it is true. 15.The second limb of jurisdiction is with regard to the statutory timelines provided by the PPADA. Under Section 175 (1), it is clear that any grievance arising from the 2nd Respondent’s decision must be lodged before the High Court through Judicial Review Mechanisms within 14 days from the date of the impugned decision. 16.In the present case, the Petitioner filed its original Petition dated 19th June 2025 on 23rd June, 2025 which was later amended vide an amended Petition dated 21st June 2025. The Board’s decision on the other hand was rendered on 6th June 2025. I note that the amended Petition was filed on 23rd June 2025 which means that 14 days had already expired on Friday 20th June 2025. From 23rd June 2025 to date is 12 months which ended 3 days ago. 17.In their submissions, Counsel for the Petitioner conceded to the fact that their Petition was filed 17 days outside the statutory timelines. Can this Court ignore those statutory timelines set by the PPADA for filing and determination of proceedings arising from the procurement process under the Act? In the case of Aprim Consultants v Parliamentary Service Commission & another (Civil Appeal E039 of 2021) [2021] KECA 1090 (KLR) (8 October 2021) the Court of Appeal held as follows regarding timelines in public procurement matters:“15.That said, is it open for the High Court, no matter how reasonable its premises, to nonetheless go on and flout the timeliness or proceed as if they did not exist? Are the timelines a question such as leave the Courts with a degree of discretion, or are they to be construed as being inflexibility binding?16.We think, with respect, that the provisions of section 175 are couched in terms that are plain and unambiguous, admitting to no interpretive wriggle room. The Section sets strict timelines for applicants, the High Court and this Court in a sequential manner;1.A person aggrieved must file seek judicial review of the Boards’ decision within 14 days.2.The High Court must determine the judicial review application within 45 days.3.A person aggrieved by the decision of the High Court must appeal to the Court of Appeal within 7 days4.The Court of Appeal must make a decision within 45 days.17.All of these timelines are patently tight. They also greatly constrict the usual timelines for the filing and determination of proceedings…” 18.The above case lays emphasis on the strict timelines of the determination of procurement matters. Similarly, Gatembu JA, in AL Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 others [2017] eKLR, explained the constitutionality of these timelines as follows: -“36.Section 175 of the Act as a whole provides for an elaborate time bound process for escalating the dispute from the Review Board (which must complete its review within 21 days after receiving the request), to seeking judicial review to the High Court (which must be done within 14 days from the date of the decision of the Review Board): to the High Court (which has 45 days such application to make its decision). A person aggrieved by the decision of High Court may appeal to the Court of Appeal within 7 days of the High Court decision. The Court of Appeal shall make a decision within 45 days which decision shall be final.37.The importance of the timelines is buttressed by Section 175(5), which provides that the decision of the Review Board shall be final and binding to all the parties should the High Court or the Court of Appeal fail to make a decision within the prescribed timelines.40.In my view, there is nothing in the elaborate provisions under Section 175 of the Act that goes against the Constitution or that is inimical or likely to lessen or adversely affect or undermine the constitutional underpinning of the remedy of judicial review. Nyamu, J (as he then was) in Republic v Public Procurement Administrative Review Board & Another Ex-parte Selex Sistemi Integrati [2008] KLR 728 opined that the elaborate provisions and ouster clauses in the then Public Procurement and Disposal Act, 2005 ‘were tailored to accelerate finality of public projects’.” 19.It is this court’s finding that the Petitioner’s challenge of the 2nd Respondent’s decision through the amended Petition was filed outside the statutory timeline of 14 days which were to lapse on 20th June 2025. Once that time lapsed, the jurisdiction of this court was ousted and cannot be revived. In Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited (1989) eKLR, the Court held that: -“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings.” 20.The centrality of jurisdiction was appreciated by the Court of Appeal in Isaak Aliaza v Samuel Kisiavuki [2021] eKLR, that:“Whether it is raised either by parties themselves or the Courts suo moto, it has to be addressed first before delving into the interrogation of the merits of issues that may be in controversy in a matter.” 21.The Supreme Court in Samuel Kamau Macharia and Another v Kenya Commercial Bank Ltd and 2 Others [2012] eKLR pronounced itself regarding the source of jurisdiction of a court or any other decision-making body as follows:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter for without jurisdiction the Court cannot entertain any proceedings.” 22.Thus, jurisdiction of a court, tribunal, quasi-judicial body or an adjudicating body can only flow from either the Constitution or a Statute (Act of Parliament) or both. 23.In this case, section 175 of the Public Procurement and Asset Disposal Act provides as follows on the timelines for filing of applications for judicial review to challenge decisions of the review Board and the period within which such applications must be determined:175.Right to judicial review to procurement(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. 24.The Court of Appeal in Aprim Consultants v. Parliamentary Service Commission & Another, CA. No. E039 of 2021 and in The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others, CA. No. E012 of 2022 held that the timelines provided for in section 175 of the PPADA are cast in stone. 25.In the Aprim case, the Court of Appeal expressed itself thus:“A perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes. Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize with finality…Thus, any judgment returned outside time would be without jurisdiction and therefore a nullity…” 26.In case of The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia v. PPARB & 3 Others, CA. No. E012 of 2022, the Court further held 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. 27.The same holding found itself in the case of Joint Venture of Lex Oilfield Solutions Ltd & CFAO Kenya Ltd v PPARB & 4 Others, Civil Appeal No. E022 of 2022 where the timelines under Section 175 of the PPADA were found to be fixed. 28.In the end, this Court finds that it lacks the requisite jurisdiction to hear and determine the Petition on the grounds of failure to comply with the provisions of Section 175 of the Public Procurement and Asset Disposal Act requiring that a challenge to the decision of the Review Board must be made within 14 days of the decision and in addition, the decision of the court must be rendered within 45 days of the date of filing of the challenge. 29.In the premise, the Preliminary Objection dated 20th April 2026 is merited and is upheld. The amended Petition and its application for conservatory orders dated 22nd June 2025 are hereby dismissed. 30.Each party to bear their own costs of the dismissed petition. 31.This file is closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2026R.E. ABURILIJUDGE