Kenya Ports Authority v Public Procurement Administrative Review Board & 2 others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR)

The Court found the High Court's declaration of unconstitutionality procedurally infirm (no such prayer in the leave application or notice of motion) and substantively flawed because the judge never applied the article 24 limitation test. Statutory timelines are a recognised, legitimate legislative device, echoed in constitutional election timelines and endorsed by the Supreme Court. The EACJ's Karua decision did not hold timelines unconstitutional.

An ouster clause excludes jurisdiction altogether; section 175(3) and (5) acknowledges the jurisdiction of the High Court and Court of Appeal while prescribing timelines. In a constitutional order guaranteeing that justice shall not be delayed (article 159(2)(b)), timelines serve rather than violate access to justice. Comparable timelines exist in articles 140(2) and 105(2) and the Elections Act.

Relying on the Supreme Court's decision in Dande on the dual approach to judicial review, the Court held that the remedy available is determined by the pleadings and procedure adopted. KPA sought only certiorari under order 53; the additional prayer for reasons was not in the leave application, and a separate application for a constitutional declaration could not be engrafted onto the judicial review application without leave to amend.

Before finding a limitation on access to justice and fair hearing unjustified, the Court was obliged to assess reasonableness and justifiability: the nature of the right, the importance and extent of the limitation, the balance struck, and less restrictive means. The judge treated the provision as a classical ouster clause without this analysis, which the appellate court found fatal to the declaration's authority.