Risk Africa Innovatis Limited v Smartmatic International Holdings B.V.A & 3 others
The bottom line
#Kenya's Court of Appeal struck out a procurement appeal filed late, confirming strict statutory deadlines cannot be extended.
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 Court of Appeal has jurisdiction to hear and determine an appeal filed out of the 7-day period prescribed by section 175(4) of the PPAD Act
- 2.Whether the listing of the appeal for hearing created a legitimate expectation that it would be heard on the merits
Key legal issues
#Whether the Court's jurisdiction under section 175(4) of the PPAD Act survives the lapse of the prescribed timelines
The jurisdiction is time-bound; once the 7-day filing window and 45-day determination period lapse, the Court's jurisdiction is extinguished by effluxion of time and the appeal must be struck out.
The Court adopted its prior decisions in Aprim Consultants and Al Ghurair, holding section 175 plain and unambiguous with tight, sequential timelines admitting no interpretive wriggle room. The appeal filed on 12 January 2022 was far outside the 7-day window expiring 2 November 2021, and the 45-day period ended 17 December 2021, so jurisdiction had lapsed before filing.
Whether listing the appeal for hearing created a legitimate expectation of a merits determination
No; legitimate expectation cannot operate contrary to the law and cannot confer jurisdiction the statute has withdrawn.
The appellant argued that the Court's listing of the appeal created a legitimate expectation of a hearing on the merits. The Court rejected this, citing Communications Commission of Kenya v Royal Media Services, reiterating that legitimate expectation cannot override the law or revive a lapsed statutory jurisdiction.
Legal principles established
#- Under section 175(4) of the PPAD Act, an appeal to the Court of Appeal must be filed within 7 days of the High Court decision and determined within 45 days; when the 45-day period ends, the Court's jurisdiction ends by effluxion of time.
- A decision made without jurisdiction is a nullity ab initio and a court must down tools the moment it finds it lacks jurisdiction.
- Legitimate expectation cannot operate contrary to the law.
Court orders
#- 1.The 1st respondent's notice of motion dated 8th February 2022 is allowed
- 2.The appeal is struck out for want of jurisdiction
- 3.Costs of the application and appeal awarded to the 1st and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- Misc C.A Judicial Review No. E134 of 2021
- Jurisdiction invoked
- Sections 175(4) and (5) of the Public Procurement and Asset Disposal Act, 2015 (time-bound appellate jurisdiction)
Relief refused
#Hearing and determination of the appeal on its merits
The appeal was filed out of the 7-day statutory window and the 45-day determination period had lapsed, leaving the Court without jurisdiction
Claim of legitimate expectation arising from the listing of the appeal
Legitimate expectation cannot operate contrary to the law
Costs
Costs of the application and the appeal awarded to the 1st and 3rd respondents
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.
Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it.
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.
When the 45 days’ period ended, the Court’s jurisdiction also came to an end by way effluxion of time.
It is trite law that legitimate expectation cannot operate contrary to the law.
Accordingly, we allow the 1st respondent’s application dated 8th February 2022 and strike out this appeal and award costs thereof to the 1st and 3rd respondents.
Issues in the judgment
#Bench listing gives Musinga's rank as 'JJA' but signature block shows '(P)' (President of the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Risk Africa Innovatis Limited v Smartmatic International Holdings B.V.A & 3 others", Case Analysis (2022). Civil Appeal (Application) E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/427/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.