Kenya Power and Lighting Company Ltd v NGM Company Ltd & 3 others
The bottom line
#Kenya's Court of Appeal let Kenya Power continue a disputed contract while pausing the court case challenging it, because public interest favoured keeping electricity services running.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal against the High Court's grant of leave and stay is arguable
- 2.Whether the appropriate test is the nugatory-appeal test or the public-interest test in a procurement context
- 3.Whether the orders of the superior court and the proceedings below should be stayed pending the intended appeal
Key legal issues
#Arguability of the intended appeal on limitation under section 100(1) of the Public Procurement and Disposal Act
The ground that the application for leave was filed out of the 14-day period prescribed by section 100(1) is not frivolous and renders the appeal arguable.
The Board decided on 18 December 2009; leave was sought on 5 January 2010. Section 100(1) requires judicial review to commence within 14 days of the Board's decision. Section 57(d) of the Interpretation and General Provisions Act excludes days where the period does not exceed six days, so computation of the 14 days is a live arguable jurisdictional issue.
Applicable test for stay in a public-procurement judicial review context
The nugatory test is not the appropriate test; the public interest and the policy of the Public Procurement and Disposal Act govern, following East African Cables.
The respondent seeks public-law remedies. The court must weigh the duty to ensure procurement laws are not breached against the reciprocal duty not to hamstring a sole essential supplier like KPLC from performing its lawful duties. The contract was signed and substantially implemented with subcontracts, making the stay of implementation a drastic order.
Whether the contract and the KPLC award decision are proper subjects of judicial review
It is doubtful that the decision of KPLC awarding the contract, or the contract itself, can be the proper subject of judicial review; the Board's decision is the proper subject matter.
Githinji JA observed that the judicial review application properly targets the Review Board's decision of 18 December 2009 dismissing the Request for Review. Whether a contract between KPLC, a body corporate, and the successful bidder can be rescinded or its implementation suspended through judicial review jurisdiction is doubtful, forming another arguable point.
Legal principles established
#- An applicant under rule 5(2)(b) must show an arguable appeal and, in ordinary cases, that the appeal would be rendered nugatory if stay is not granted.
- In judicial review seeking public-law remedies, the appropriate test on a rule 5(2)(b) application is the public interest and the policy of the governing statute, not the private nugatory-appeal test.
- A single arguable issue, particularly one going to jurisdiction, suffices for a rule 5(2)(b) application.
- A stay does not reverse, annul, undo or suspend what has already been done.
Court orders
#- 1.Stay of the proceedings in High Court Miscellaneous Civil Application No. 1 of 2010 pending the hearing and determination of the intended appeal (prayer 2)
- 2.Stay of the order of the superior court of 16th March 2010 staying implementation of the contract between the applicant and the second interested parties (prayer 4)
- 3.Refusal to stay the order granting leave to commence judicial review proceedings
- 4.Costs of the application to be costs in the appeal
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Would have dismissed the motion: the intended appeal is arguable on the limitation/jurisdiction point, but damages are an adequate remedy for the financial losses and a stay would render the respondent's pending suit otiose.
So weighing the competing interests of the parties, the balance tilts in favour of dismissing the motion dated 9th April 2010. Accordingly I would order that the motion be dismissed.p. 4
Wrote the judgment
Held the intended appeal arguable on the time-bar under section 100(1) of the Public Procurement and Disposal Act; the nugatory test was inapt for public-law remedies and the public interest test applied; granted stay of proceedings and of the order stopping implementation of the contract, but not of the leave order.
In those circumstances, I am satisfied that this is a proper case for grant of order of stay of proceedings and the order for stay of the order stopping the implementation of the contract. It is not appropriate to stay the order granting leave.
Wrote the judgment
Generally opposed to interfering with discretionary leave-stage decisions, but found both jurisdictional and public-interest elements bringing the case within the Goldenberg exception; would grant prayers 2 and 4.
In this case however, there are both jurisdictional and public interest elements and therefore the case falls within the exception to the rule.p. 11
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. C.A No. 1 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of the order of the superior court granting leave to commence judicial review proceedings
Not appropriate to stay the grant of leave; the leave is spent once the judicial review application is filed
Costs
The costs of this application shall be costs in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As Nyamu, J.A. agrees, the application is allowed to the extent that orders in terms of prayer 2 and 4 of the application are granted. The costs of this application shall be costs in the appeal.
For the foregoing reasons, I would therefore grant orders in terms of prayers 2, and 4 of the application dated 9th April 2010 and further order that the costs of the application abide the intended appeal. It is so ordered.
In my view, the appropriate test is whether it is in the public, interest and also in accordance with the policy of the Public Procurement and Disposal Act to grant the orders of stay sought in the application.
Lastly, it is trite law that a “stay” does not reverse, annul, undo or suspend what has already been done
I would rule that the establishment of that one issue is sufficient for purposes of an application under rule 5 (2) (b) of the Court Rules, and there would be no necessity of a multiplicity of arguable points.
Issues in the judgment
#Nyamu JA records the grant of leave as 25th October 2010, months after this ruling was delivered on 11th June 2010.
Conflicting dates for the signing of the contract: 21st December 2009 (Githinji JA) versus 6th March 2010 (Nyamu JA).
Bosire JA's ruling ends by adopting Githinji JA's order despite having proposed dismissal, obscuring the dissent's formal status.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Power and Lighting Company Ltd v NGM Company Ltd & 3 others", Case Analysis (2010). Civil Application No. 74 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/493/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.