Four M Insurance Brokers Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal (Application) E1009 of 2023) [2024] KECA 1212 (KLR)
The bottom line
#Kenya's Court of Appeal refused Kenya Ports Authority's bid to review a procurement judgment, confirming that review cannot be used as a second appeal.
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 applicant was barred from pursuing the application in light of the notice of appeal to the Supreme Court filed by the 3rd and 4th respondents
- 2.Whether section 175(4) and (5) of the Public Procurement and Asset Disposal Act bars a review application on grounds of functus officio / effluxion of statutory timelines
- 3.Whether the application merits invocation of the Court's residual jurisdiction to review and set aside its judgment of 9th February 2024
Key legal issues
#Whether a review application is time-barred by section 175(4) and (5) of the Public Procurement and Asset Disposal Act
No. Section 175 timelines apply to appeals from the High Court in procurement matters, not to review applications, which are governed by the Court of Appeal Rules and carry no statutory time limit
The court distinguished Aprim Consultants and the TSK Electronica line of decisions, holding they address challenges to High Court decisions within the 45-day appellate window. A review application is a different creature governed by the Court's own rules, so the 45-day statutory limitation and effluxion-of-time objection fails.
Whether a pending notice of appeal to the Supreme Court bars a review application by a different party
No. The notice of appeal was filed by the 3rd and 4th respondents, whereas the review application was by the applicant, so the objection was irrelevant
The court noted that the review application and the notice of appeal were filed by different parties; since the applicant (not the notice-filers) sought the review, the existence of the notice did not oust the court's jurisdiction to determine the application.
Whether the residual jurisdiction to review a final Court of Appeal judgment was merited
No. The grounds advanced were grounds of appeal disguised as review; no apparent error, fraud, bias or injustice on the face of the record was demonstrated
Applying Benjoh Amalgamated, the Wambora principles and National Bank of Kenya v Ndungu Njau, the court held that a review is an equitable remedy requiring demonstration that the judges misdirected themselves or that an apparent injustice exists. Disagreement with the judgment's merits does not qualify. The application was an attempt to prolong the dispute through legal craft.
Legal principles established
#- A court becomes functus officio after delivering judgment and may not revisit its own judgment on the merits unless provided by law; review is not a second appeal and mere disagreement with a judgment does not qualify a party to review it
- An application for review of a Court of Appeal judgment requires demonstration of an apparent error or omission on the face of the record, or fraud, bias or injustice; grounds that go to the merits are grounds of appeal, not review
Court orders
#- 1.The application for review is dismissed
- 2.Costs of the application awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E1009 of 2023
- Jurisdiction invoked
- Residual (inherent) jurisdiction to review own judgment; Articles 10, 20, 25, 48, 159 and 259 of the Constitution; sections 3A and 3B Appellate Jurisdiction Act; rule 1(2) Court of Appeal Rules
Relief refused
#Review and setting aside of the judgment of 9th February 2024 in Civil Appeal No. E1009 of 2023
The grounds urged were grounds of appeal, not review; no apparent error or injustice on the face of the record; review is not a second bite at the cherry
Costs
The application is dismissed with costs to the 2nd respondent.
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.
after passing judgment, a court becomes functus oficio. The efiect of this position in law is that in the circumstances, a Court cannot purport to revisit its own judgment on its merits or exercise a judicial power over the same matter unless provided by law.
an application for review is not a further appeal where a party tries to take a second bite at the cherry
the above grounds need no rocket science to establish that on face value, these are grounds for appeal and not review
Our conclusion thus is that the application, which is an appeal disguised as an application for review, is not only incompetent but also unmerited. Consequently, it is hereby dismissed with costs to the 2nd respondent.
The 4th respondent owes a duty to the public to comply with the orders of the Court and to ensure that there is compliance with the Public Procurement and Asset Disposal Act. It should not be seen to participate in attempts to frustrate the procurement process.
this is jurisdiction that should be invoked with circumspection and only in cases whose decisions are not appealable (to the Supreme Court)
Issues in the judgment
#Contract date given inconsistently as 2nd October, 2023 and 2nd October, 2024 in the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Four M Insurance Brokers Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal (Application) E1009 of 2023) [2024] KECA 1212 (KLR)", Case Analysis (2024). Civil Appeal No. E1009 of 2023 (Review Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1212/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.