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Court of AppealOtherCivil Appeal (Application) E008 of 2022

Risk Africa Innovatis Limited v Smartmatic International Holdings B.V.A & 3 others

Court of Appeal
4 March 2022
2,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a procurement appeal filed late, confirming strict statutory deadlines cannot be extended.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Musinga, Nambuye and Sichale, JJ.A.) disposed of a notice of motion by the 1st respondent, Smartmatic, challenging the Court's jurisdiction to hear the appellant's appeal against a High Court judicial review judgment of 26 October 2021 (Ngaah, J.) quashing the entire decision of the Public Procurement Administrative Review Board. The Board had nullified the IEBC's award of the KIEMS tender to Smartmatic following a review request by the appellant. Smartmatic argued that under sections 175(4) and (5) of the Public Procurement and Asset Disposal Act, 2015, the appeal had to be filed within 7 days of the High Court decision and determined within 45 days, failing which the Court's jurisdiction lapsed. The appellant conceded filing the appeal on 12 January 2022, well outside the 7-day window expiring 2 November 2021, and argued that the PPAD Act does not oust the Appellate Jurisdiction Act and that the listing of the appeal created a legitimate expectation of a merits hearing. The Court, associating itself with its prior decisions in Aprim Consultants and Al Ghurair, held that section 175 is plain and unambiguous, setting tight sequential timelines admitting no interpretive wriggle room. Since the 45-day determination period expired on 17 December 2021, the Court's time-bound jurisdiction had ended by effluxion of time before the appeal was even filed. It rejected the legitimate expectation argument as contrary to trite law. The Court allowed the application, struck out the appeal, and awarded costs to the 1st and 3rd respondents. The decision binds subordinate courts and procurement litigants on the finality of section 175 timelines.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the listing of the appeal for hearing created a legitimate expectation that it would be heard on the merits

Key legal issues

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01

Whether the Court's jurisdiction under section 175(4) of the PPAD Act survives the lapse of the prescribed timelines

Holding

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.

Reasoning

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.

p. 5
02

Whether listing the appeal for hearing created a legitimate expectation of a merits determination

Holding

No; legitimate expectation cannot operate contrary to the law and cannot confer jurisdiction the statute has withdrawn.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The 1st respondent's notice of motion dated 8th February 2022 is allowed
  2. 2.The appeal is struck out for want of jurisdiction
  3. 3.Costs of the application and appeal awarded to the 1st and 3rd respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 5

Claim of legitimate expectation arising from the listing of the appeal

Legitimate expectation cannot operate contrary to the law

p. 5

Costs

Costs of the application and the appeal awarded to the 1st and 3rd respondents

Quotable passages

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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.
p. 3Nature of jurisdiction
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.
p. 4Strict construction of PPAD Act timelines (Aprim, adopted)
When the 45 days’ period ended, the Court’s jurisdiction also came to an end by way effluxion of time.
p. 5Time-bound appellate jurisdiction under section 175(4)
It is trite law that legitimate expectation cannot operate contrary to the law.
p. 5Legitimate expectation cannot override statute
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.
p. 5Final orders

Issues in the judgment

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minor

Bench listing gives Musinga's rank as 'JJA' but signature block shows '(P)' (President of the Court of Appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.