Papaton Security Services Limited v Public Procurement Administrative Review Board & 3 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW MISCELLANEOUS NO. E095 OF 2026** **PAPATON SECURITY SERVICES LIMITED…...…………………….…APPLICANT** **VERSUS** **PUBLIC PROCUREMENT** **ADMINISTRATIVE REVIEW BOARD……………………...……1ST RESPONDENT** **ACCOUNTING OFFICER,** **MASINDE MULIRO UNIVERSITY** **OF SCIENCE AND TECHNOLOGY.…………………………...……2ND RESPONDENT** **MASINDE MULIRO UNIVERSITY** **OF SCIENCE AND TECHNOLOGY …………………………..…….3RD RESPONDENT** **ISMAX SECURITY LIMITED……………….……………..………..4TH RESPONDENT** **RULING** 1. Judgement was delivered herein on 31st July 2026, wherein the judicial review orders sought were granted, and the orders made by the 1st respondent set aside. The bid, by the applicant, had been disqualified by the 2nd and 3rd respondents, and award of the subject tender was made to the 4th respondent. The applicant had initiated the proceedings before the 1st respondent, seeking the quashing of the award of the tender to the successful bidder, the 4th respondent herein. The 1st respondent declined, and the applicant escalated the matter to the High Court by way of judicial review. 2. The 4th respondent has now come back to court, by way of a motion, dated 12th August 2026, supported by an affidavit sworn by Mr. Abdirahman Sankor, on even date, seeking stay of execution, implementation and enforcement of the judgement of 31st July 2026, pending the filing of an intended appeal at the Court of Appeal; and injunctive relief, with respect to the 2nd and 3rd respondents initiating a fresh tendering process. It is averred that the 4th respondent is dissatisfied with the said judgement, and that it is in the process of appealing against it. It is argued that the 4th respondent would suffer loss, from the setting aside of its award and the repeat of the tendering process, should the judgement of 31st July 2026 be implemented, during the currency of the intended appeal, which would render the appeal nugatory. The application is premised on sections 1A, 1B and 63(e) of the Civil Procedure Act, Cap. 21, Laws of Kenya, and Order 42 rule 6 of the Civil Procedure Rules. 3. The applicant has reacted to the application, vide a replying affidavit, sworn by Ms. Nancy Khasoha Khamusienyi, on 18th August 2026. The response highlights that the impugned judgement was delivered on 31st July 2026, and any appeal ought to have been filed 7 days thereafter, according to section 175(4) of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya, and that should have been by 7th August 2026. It is submitted that the notice of appeal was filed on 11th August 2026, outside the 7 days. The decision *in ELC Electroconsult SPA vs. Public Procurement Administrative Review Board and 3 others* [2025] KECA 2314 (KLR) is cited. 4. Contemporaneously filed with the replying affidavit was a preliminary objection, of even date, which principally turns around the motion, dated 12th August 2026, offending section 175(4) of the Public Procurement and Asset Disposal Act, and there being no proper appeal before the Court of Appeal. 5. The application has been canvassed by way of written submissions. 6. The written submissions by the 4th respondent are dated 25th August 2026, and turn around 3 principal issues, jurisdiction to grant stay pending appeal, the requirements to be met and the application being filed without unreasonable delay. It is argued that there is jurisdiction, by virtue of Order 42 rule 6(4) of the Civil Procedure Rules and Rule 5(2)(b) of the Court of Appeal Rules. It is submitted that the principal grounds, under the Civil Procedure Rules, are substantial loss, without unreasonable delay and security for costs. *Butt vs. Rent Restriction Tribunal* [1979] eKLR [1979] KECA 22 (KLR) and *Kenya Shell Limited vs*. *Kibiru & another* [1986] eKLR are cited. It is argued that, unless stay is granted, there is a possibility that fresh tendering may be undertaken. *Masterpower Systems Limited vs. Public Procurement Administrative Review Board & 2 others* [2015] KEHC 7698 (KLR) and *Republic vs. Public Procurement Administrative Review Board & another Utmost Insurance Brokers Limited (ex parte)* [2026] KECH 2792 (KLR) are relied upon. It is argued that there was no delay, for judgement was delivered on 31st July 2026 and the application was filed on 12th August 2026. 7. The applicant has filed written submissions, dated 20th August 2026, and it addresses only 1 issue, on jurisdiction. It is submitted that section 175(4) of the Public Procurement and Asset Disposal Act only allows an appeal to be filed within 7 days. In this case, it is argued, that the notice of appeal should have been filed by 7th August 2026, but the notice of appeal was not filed until 11th August 2026. It is highlighted that there is a conflict between section 175(4) of the Public Procurement and Asset Disposal Act and rules 77, 78 and 79 of the Court of Appeal Rules, and it is argued that the Act prevails over the Rules, given that the Act is a substantive statute while the Rules are subsidiary legislation. It cites section 5(1) of the Public Procurement and Asset Disposal Act, *Hon. Lady Justice Kalpana* *Rawal vs. Judicial Service Commission & others* [2016] eKLR and *ELC Electroconsult SPA vs. Public Procurement Administrative Review Board & 3 others* [2025] KECA 2314 (KLR). It is asserted that the notice of appeal was filed outside the 7 days allowed by section 175(4) of the Public Procurement and Asset Disposal Act. 8. There is only 1 issue for me to determine, and that is whether the instant application is merited. 9. The provisions of the Civil Procedure Rules, relating to post-judgement and post-ruling applications, on an appeal or intended appeal to be lodged against a judgement or order of the High Court, apply with regard to appeals to the Court of Appeal, by virtue of Order 42 rule 6(4), which ought to be read together with rule 43 of the Court of Appeal Rules. Under order 42 rule 6, the only order, that the High Court may make, is limited to stay of execution of the orders that the High Court might have made in the impugned judgement or ruling. Order 42 rule 6(4) says that “*For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given*.” 10. Is the judgement of 31st July 2026 capable of execution? Yes, it is. It allowed the judicial review application, whose effect was to quash the award made to the 4th respondent. That would pave way for conduct of a fresh tendering exercise. Should that be done, any appeal filed by the 4th respondent, at the Court of Appeal, would be defeated, for the 4th respondent would like to have the award made to it sustained. 11. One of the orders sought herein relates to grant of an injunction, to prevent performance or execution of the judgment of 31st July 2026, particularly on the tendering process being initiated afresh. The High Court exercises its power, with respect to applications for orders pending appeal, under Order 42 of the Civil Procedure Rules. None of the provisions, in Order 42 of the Civil Procedure Rules, provide for grant of any other order, except stay of execution. There is no provision for grant of an injunction pending appeal, under Order 42, and the High Court would have no jurisdiction to grant an order that the Civil Procedure Rules has not empowered it to make. 12. It is Rule 5(2)(b) of the Court of Appeal Rules which vests jurisdiction for granting of injunctions pending appeal. Rule 5(2)(b) provides that “*the Court may - in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just*.” The “*Court*,” referred to in that provision, is, by virtue of Rule 2 of the Court of Appeal Rules, “*the Court of Appeal ..*.” That provision does not confer any power on the High Court to grant injunctions pending appeal, for rule 5(2)(b) grants power only to the Court of Appeal. 13. Rule 43 of the Court of Appeal Rules makes reference to applications filed at the superior court, which, in the context of the Court of Appeal and the High Court, refers to, among others, the High Court. Rule 43 talks about the making of the orders provided under Rule 5(2)(b) of the Court of Appeal Rules. However, the same ought to not be read as vesting the powers, conferred by Rule 5(2)(b) of the Court of Appeal Rules, on the High Court. Rule 43 ought to be read together with order 42 of the Civil Procedure Rules, with respect to the powers exercisable by the High Court, or the orders that the High Court can make on applications pending an appeal before the Court of Appeal; and with Rule 5(2)(b) of the Court of Appeal Rules, with respect to the orders that the Court of Appeal can make, relating to applications seeking orders pending hearing of appeals before it. 14. For avoidance of doubt, Rule 43 of the Court of Appeal Rules says: “*43. Application to superior court* *The Court may entertain an application for stay of execution, injunction, stay of further proceedings or extension of time for the doing of any act authorized or required by these Rules, notwithstanding the fact that no application has been made in the first instance to the superior court*.” 1. Reference to “*Court*,” with a capital “C,” in Rule 43, is to the Court of Appeal, going by the interpretation offered by Rule 2 of the Court of Appeal Rules. The reference to “*superior court*,” in Rule 43, employs the smaller “c,” to mean a court subordinate to the Court of Appeal, and “*the superior court*,” in this context, refers to the High Court and courts of equal status. 2. In view of the above, there would be no jurisdiction for me to grant the injunctive order sought in the application herein. 3. The parties have submitted about the conditions for grant of stay, that is about the application for stay being filed timeously, without unreasonable delay, the applicant being exposed to substantial loss, should the appeal ultimately succeed, and existence of an arguable appeal. Without prejudice to what I have discussed above, I will consider those grounds. 4. The impugned judgement was delivered on 31st July 2026, the application for stay was lodged herein on 12th August 2026. Under the Court of Appeal Rules, a notice of appeal ought to be filed within 14 days of delivery of the judgement or ruling, according to rule 77(2). Going by that provision, there was no delay, hence the application was filed timeously, or without unreasonable delay. However, these proceedings relate to public procurement disputes, which are governed by the Public Procurement and Asset Disposal Act, which, at section 175(4), requires that an appeal be filed at the Court of Appeal within 7 days, from the date of delivery of the decision of the High Court. The judgement herein having been delivered on 31st July 2026, the notice of appeal ought to have been filed within 7 days, which lapsed on or by 7th August 2026. Any notice of appeal filed outside that period would be invalid. 5. Going by section 175(4) of the Public Procurement and Asset Disposal Act, it should follow that the notice of appeal, with respect to judicial review decisions of the High Court, at the High Court, ought to be filed within the 7 days of delivery of the impugned decision, and the filing of an application for stay ought also to be aligned to that timeline. As the notice of appeal was filed outside the statutory period, and without leave, it was invalid, and no appeal was pending on 12th August 2026, hence there could be no foundation for seeking stay of execution or implementation pending appeal. 6. On substantial loss, the 4th respondent has merely alleged that it would suffer substantial loss, but it has not sought to demonstrate how that would be so. 7. On arguability of the appeal, I note that it is not required, under Order 42 rule 6 of the Civil Procedure Rules, that it be established or addressed at the High Court. It is a requirement, under Rule 5(2)(b) of the Court of Appeal Rules, to be considered in applications placed before the Court of Appeal. The High Court need not consider the arguability of the appeal, for it would have already taken a position on the matter, in its impugned judgement. In any case, the High Court would be *functus officio*, on the merits of the matter, after pronouncing itself on it in the judgement, and the court, properly seized of the merits, at this stage, would be the Court of Appeal. 8. As discussed above, Order 42 rule 6 of the Civil Procedure Rules does not raise the issue of the arguability of the appeal at the Court of Appeal, for consideration by the High Court. What it does is to require furnishing of security, for due performance. The parties have not addressed me on that, and I shall not advert to it. 9. In the end, I am not persuaded that the prayers sought, in the motion, dated 12th August 2026, are adequately substantiated or established, and I find and hold that the said application has not reached the threshold for grant of the prayers sought. I, hereby, therefore, disallow and dismiss the said application. Each party shall bear its own costs. Orders accordingly. **DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 3RD DAY OF SEPTEMBER 2026.** **W MUSYOKA** **JUDGE** **Mr. Abdirahman, Court Assistant.** **Ms. L. Wafula, Legal Researcher.** **Advocates** **Mr. Mbaka, instructed by Omwando Mbaka & Company, Advocates for the applicant.** **Mr. Ali, instructed by the Attorney General, for the 1st respondent.** **Ms. Grace Mburu, Advocate, instructed by the 2nd and 3rd respondents.** **Mr. Okoth, instructed by B. Okoth & Company, Advocates for the 4th respondent.**