https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1459

Kenya Ports Authority & another v Kalmar Finland OY & 2 others (Civil Appeal E474 of 2026) [2026] KECA 1459 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KECA 1459 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E474 of 2026 W Karanja, HA Omondi & LM Njuguna, JJA July 17, 2026 Between Kenya Ports Authority 1st Appellant Accounting Officer, Kenya Ports Authority 2nd Appellant and Kalmar Finland OY 1st Respondent Public Procurement Administrative Review Board 2nd Respondent Brookwood Technical Limited 3rd Respondent (Being an appeal against the judgment of the High Court of Kenya at Nairobi (Musyoka, J.) dated 28th May 2026 in HCJR No. E117 of 2026) Judgment 1.The appellants filed a notice of appeal dated 3rd June 2026 and a memorandum of appeal dated 4th June 2026, while the 1st respondent filed a notice of cross-appeal dated 9th June 2026. In addition, the 1st respondent/applicant herein filed a notice of motion to strike out the appeal, dated 15th June 2026. Considering the strict statutory timelines for hearing and determination of procurement cases, this Court ordered that the appeal, cross- appeal and the motion to strike out be heard simultaneously, and they were heard on 1st July 2026. 2.All the parties were heard and allowed time to submit on the appeal, cross-appeal, and the notice of motion. The Court has considered all the submissions made, the applicable law, and the authorities relied on. We propose to deal with the application first since its outcome will have a bearing on the appeal and cross- appeal. 3.Through the application, the 1st respondent/applicant is seeking the following orders:“1.That the appellant's appeal be and is hereby struck out;2.That costs of this application and the struck-out appeal be awarded to the 1st respondent/ applicant; and3.That this Honourable Court be pleased to make such further and/or other orders as it may deem just and expedient in the circumstances.” 4.The application is founded on grounds that, under section 175(4) of the Public Procurement and Asset Disposal Act (“PPADA”) the appellants should have brought their appeal within 7 days of the impugned judgment of the High Court. However, the appellants lodged their appeal after expiry of the prescribed period; therefore, the same is ripe for striking out. The applicant referred to rule 3 of the Court of Appeal Rules, 2022, and section 57 of the Interpretation and General Provisions Act, and submitted that the 7-day prescribed period lapsed on 4th June 2026, yet the appeal was lodged and paid for on 5th June 2026. 5.It is the applicant’s case that the prescribed timeline for appeal under section 175(4) of the PPADA is jurisdictional and the court cannot exercise its discretion to extend, enlarge or abridge it. On this basis, it stated that the Court lacks jurisdiction to hear and determine the appeal. 6.The appellants/respondents filed a replying affidavit dated 26th June 2026 opposing the application. The same was sworn by Eveline I. Shigoli, who has deponed that following the judgment of the High Court delivered on 28th May 2026, the appellants filed a notice of appeal on 3rd June 2026. That on 4th June 2026, the appellants wrote to the Deputy Registrar of the High Court, requesting for typed proceedings, and the letter was served upon all the parties herein. 7.The appellants stated that, according to rule 84 of the Court of Appeal Rules, 2022, time stops running from the time the appellants apply for typed proceedings until the same are furnished. Consequently, the time stopped running from 4th June 2026, when the application for typed proceedings was made, until 10th June 2026, when the typed proceedings were furnished to them. They submitted that the record of appeal was filed on 4th June 2026 at 4:06 pm, pending approval by the Deputy Registrar, but on the same day at 6:01 pm, the Deputy Registrar rejected the record of appeal because it did not contain certified copies of the typed proceedings and the impugned judgment. 8.The appellants stated that since it was after office hours, they contacted the Deputy Registrar the following day on 5th June 2026 and explained that the typed proceedings had not yet been availed by the High Court and that they intended to file a supplementary record of appeal once the same were availed. With this explanation, the Deputy Registrar approved the record, and it was satisfactorily filed. 9.The appellants urged the Court not to strike out the appeal, and, in any event, the decision is discretionary. They cited the case of Tome & Another vs. Attorney General & 2 others [2021] KECA 150 (KLR) and Articles 50 and 159(2)(d) of the Constitution. They urged the Court not to pay undue regard to procedural technicalities. They reiterated that they are desirous that the appeal be heard since it raises triable issues and that if the orders are granted, they stand to suffer great prejudice. 10.The application was canvassed by way of written submissions, which were highlighted in Court. 11.In its submissions, the applicant rehashed the averments made on the face of the application and in the supporting affidavit thereof. It also placed reliance on the provisions of section 175(4) of the PPADA and the case of Tuv Austria Turk vs. Public Procurement Administrative Review Board & 3 Others, Civil Appeal No. E644 of 2025, in which it was held that section 57 of the Interpretation and General Provisions Act, rule 3(a) of the Court of Appeal Rules and Article 259(5)(a) of the Constitution are applicable, such that the day on which the judgment is delivered is excluded and the last day is included. That, based on this computation criteria, time started running on 29th May 2026 and the (7) days lapsed on 4th June 2026. It added that filing is only complete once a document is lodged at the appropriate registry and the filing fees duly paid. 12.Further reliance was placed on the cases of Motel Schweitzer vs. Thomas Edward Cummingham & Another [1955] 22 EACA 252; South Nyanza Sugar Company Limited vs. Samwel Osewe Ochillo [2007] KECA 175 (KLR) and ELC Electroconsult S.P.A. vs. The Public Procurement Administrative Review Board & 3 Others, Civil Appeal No. E1012 of 2025. It was its submission that the timeline set under section 175(4) of the PPADA is mandatory and incapable of extension. 13.The applicant argued that even under rule 84 of the Court of Appeal Rules, the statutory set time cannot stop running because appeals under section 175 of the PPADA are sui generis, as was held in the case of ELC Electroconsult S.P.A. vs. The Public Procurement Administrative Review Board & 3 Others (supra). In that case, the Court ranked section 175 of the PPADA higher than the Court of Appeal Rules and buttressed this position by quoting section 5 of the PPADA, which provides that where there is a conflict between the Act and any other written law, the Act prevails. 14.The applicant also relied on the cases of Aprim Consultants vs. Parliamentary Service Commission & Another [2021] KECA 1090 (KLR); Sharpcut Designers Ltd vs. Public Procurement Administrative Review Board & 2 Others [2025] KECA 1132 (KLR) and National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) and stated that the timelines provided under section 175 of the PPADA are ‘cast in stone’ and since they speak to the very jurisdiction of the court, it is mandatory that the appeal be struck out. 15.The appellants/respondents submitted that their appeal ought to be heard on its merits rather than struck out on technicalities. That no prejudice would be suffered by the 1st respondent/ applicant if the matter proceeds, but striking it out would permanently bar them from raising fundamental issues. They relied on Article 159(2)(d) of the Constitution, which directs courts to administer justice without undue regard to procedural technicalities. 16.In addition, they invoked sections 3A and 3B of the Appellate Jurisdiction Act, on the overriding objective of ensuring just, expeditious, proportionate, and affordable resolution of appeals, and which mandates courts to handle matters with the aim of achieving justice. They relied on the case of Tome & Another vs Attorney General & 2 Others (supra), where the Court of Appeal emphasized that striking out pleadings is a draconian measure which should only be applied in plain and outright cases, and subject to judicial discretion depending on circumstances. 17.They reaffirmed their argument that they filed their memorandum of appeal and record of appeal on 4th June 2026, but it was rejected for lacking certified copies of the impugned judgment and typed proceedings. They stated that they had already requested for these documents on the same date, but the omission was beyond their control. That they refiled the documents on 5th June 2026, the same were accepted upon explanation, assessed, and paid for. On this basis, they submitted that substantive justice, fairness, and equity demand that the appeal be determined on its merits rather than being dismissed for procedural shortcomings. 18The appellants further anchor their submissions on the equitable maxim actus curiae neminem gravabit - that no act of the court should harm a litigant. This principle was first articulated by the Supreme Court of India in Jang Singh vs. Brijlal & Others [1963], where the Court held that it is the bounden duty of courts to ensure that a litigant is not prejudiced by a mistake of the court, and that such a person should be restored to the position they would have occupied but for that mistake. 19.The maxim was reaffirmed in Board of Control for Cricket, India & Another vs. Netaji Cricket Club & Others [2005], where the Court emphasized that a party cannot be made to suffer due to an act of the court. It cited Rajesh D. Darbar vs. Narasingrao Krishnaji Kulkarni (2003), noting that the maxim is founded upon justice and good sense, and is complemented by the principle lex non cogit ad impossibilia - the law does not compel a person to do the impossible. They submitted that at the point of filing the appeal, they could not provide the court with documents that they did not have in their possession. 20.They also relied on the case of Karnataka Rare Earth vs. Senior Geologist, Department of Mines and Geology (2004), in which the Court clarified that the doctrine is not limited to erroneous acts of the court but extends to any act that the court would not have undertaken had it been correctly appraised of the facts and law. Further reliance was placed on the Kenyan case of In re Estate of Isaac Mote Kinitti (Deceased) [2026] KEHC 1583 (KLR), where the High Court held that a litigant who complies with statutory filing timelines cannot be penalized due to systemic registry failures. 21.On the strength of the submissions made, they urged the Court to find that the application lacks merit. Further, that it is in the interest of justice, equity and fairness that the application be dismissed and the appeal be considered on its merits. 22.The 2nd and 3rd respondents supported the case made by the appellants. 23.The issue for determination is whether the appeal should be struck out for being filed out of time. 24.Section 175(4) of the PPADA provides that an appeal against the decision of the High Court must be filed before the Court of Appeal within 7 days. This provision is the basis upon which the jurisdiction of the Court of Appeal is invoked. It must be considered that jurisdiction is everything, and without it, a court should down its tools. (see the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1) 25.In this case, the impugned judgment was delivered on 28th May 2026. Any party aggrieved by that decision ought to have filed its appeal within the 7-day window of appeal, which closed on 04th June 2026. The appellants/respondents stated in their replying affidavit that they filed the record of appeal on 4th June 2026 at 4:06 pm, but the same was rejected by the Deputy Registrar on the grounds that the impugned judgment and typed proceedings were not filed. The Deputy Registrar’s communication to the appellants/ respondents in that regard was made at 6:01 pm the same day. 26.The appellants/respondents stated that they had, on 3rd June 2026, applied for the typed proceedings at the High Court but the same had not yet been provided. This explanation was given to the Deputy Registrar, who then approved the document for payment on 5th June 2026, and filing fees was paid, albeit one day too late. Given the nature of this case and the statutory timelines involved, the court is bound by the PPADA since its jurisdiction under section 175(4) thereof is time-bound. This position has consistently been taken by this Court over the years, noting that a document filed outside the 7-day window of appeal automatically ousts the jurisdiction of the court in public procurement appeals. 27.In the case of TSK Electronica Y Electricdad S.A. & Ansaldoenergia vs. PPARB & 3 Others, Civil Appeal. No. E012 of 2022 as applied in the case of ADK Technologies Ltd in Consortium with Computer Technologies Ltd vs. Public Procurement Administrative Review Board & 4 others [2022] KECA 407 (KLR), this Court held that:“Our appreciation of section 175(4) is that a person aggrieved by a decision of the High Court arising from a judicial review decision in a procurement matter under this Act and who desires to prefer an appeal to this Court must do so within a period of 7 days from the decision of the High Court. Thereafter, this Court must hear and make a determination of the appeal within 45 days from the date of its filing. These timelines are cast in stone and cannot be varied. The strict time frames under this section underscore the intention of Parliament to ensure that disputes relating to Public Procurement and Assets Disposal are disposed of expeditiously.” 28.The appellants/respondents submitted that in accordance with rule 84(1) of the Court of Appeal Rules, 2022, time ought to have stopped running when they applied for typed proceedings and a certified copy of the impugned judgment from the High Court. The letter requesting for typed proceedings was written on 3rd June 2026, and it was served upon the respondents. Conversely, the applicant reminded the court that appeals arising under section 175 of the PPADA are sui generis and the timelines involved cannot be stopped by the application of the Court of Appeal Rules or the Court’s discretion to extend time. They cited the case of ELC Electroconsult S.P.A. vs. The Public Procurement Administrative Review Board & 3 Others (supra) where, indeed, this Court held that:“In effect, appeals to this Court under Section 175 are not ordinary appeals. They are sui generis; in a class of their own…It bears repeating that procurement proceedings under the Act are sui generis and distinct from normal proceedings.” 29.In as much as the appellants/respondents urged the Court to apply the maxim lex non cogit ad impossibilia, stating that they could not have filed documents that they did not have, that argument is skewed. Strict timelines in law exist for a good reason, which is to allow the court to be seized of the necessary jurisdiction in the moment. Such jurisdiction lapses with the lapse of the set timeline. 30.It, therefore, means that the appellants/respondents ought to have considered all these factors and endeavoured to file an appeal within time. They did not demonstrate that they put in all efforts to file within time, including by physically visiting the court to ensure that the approval by the Deputy Registrar is given timeously. Their rational explanation for the absence of the certified copies of the impugned judgment and typed proceedings came after the 7th day of the 7-day appeal period had ended. 31.Arguments arose as to whether section 175 of the PPADA ranks higher than the Court of Appeal Rules. The answer has already been stated in the affirmative through the above-cited decision acknowledging the sui generis nature of public procurement proceedings. Furthermore, section 5 of the PPADA provides protection in instances of such queries by acknowledging that, in case of conflict with any other law, the Act would prevail. This includes conflict regarding the computation of the 7-day window of appeal to the Court of Appeal under section 175(4) of the PPADA. 32.It is, therefore, the finding of this Court that the application has merit and is hereby allowed. The appellant’s appeal is struck out. Naturally, it follows that the cross-appeal must also fall by the wayside. Due to the peculiar circumstances of this matter, each party shall bear its own costs of the appeal and the cross-appeal. 33.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY 2026.W. KARANJA.....................................JUDGE OF APPEALH. A. OMONDI.....................................JUDGE OF APPEALL. NJUGUNA.....................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar