Keller Kustoms Kenya Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E001 of 2025) [2025] KECA 243 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that leaving the Accounting Officer out of a procurement review request is fatal, no matter what the official form says.
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 1st respondent had jurisdiction to hear and determine the 3rd respondent's preliminary objection
- 2.whether the 1st respondent's decision was in accordance with the law
- 3.whether, in reaching its decision, the 1st respondent acted fairly and reasonably
- 4.whether the 1st respondent acted in breach of the appellant's legitimate expectation
- 5.whether the 1st respondent acted in breach of the appellant's constitutional rights to fair hearing and fair administrative action
Key legal issues
#Timeliness of the jurisdictional challenge to the 3rd respondent's preliminary objection
The High Judge erred in treating the jurisdictional issue as raised too late in submissions, but the point was inconsequential because a jurisdictional challenge may be raised at any stage, and the fatal omission of the Accounting Officer dominated the outcome.
The Court held that regulation 209's three-day time limit cannot constrain a jurisdictional challenge, which may be raised at any time, in any manner, even suo motu by the tribunal, provided parties are heard. The Board's failure to pronounce on the objection ought to have been determined, but the fundamental omission of the Accounting Officer meant the point was inconsequential to the appeal's outcome.
Whether failure to name the Accounting Officer of the Procuring Entity in the Request for Review was fatal
Yes. Section 170 of the PPADA mandatorily lists the parties to a review, including the Accounting Officer; omission renders the Request for Review incompetent and incurable by amendment.
The Court read sections 168 and 170 of the Act together with regulation 205(1) and section 31 of the Interpretation and General Provisions Act. Notification under section 168 exists precisely to make the Accounting Officer a party as section 170 mandates. The Form in the Fourteenth Schedule, naming the Procuring Entity, cannot override the express statutory provision. The Court endorsed the High Court and Court of Appeal decisions in the El Roba/Oyondi litigation.
Conflict between the Form in the Fourteenth Schedule of the Regulations and section 170 of the Act
The Act prevails over the Regulations; the Form cannot be elevated above express statutory provisions.
Section 31(b) of the Interpretation and General Provisions Act forbids subsidiary legislation inconsistent with an Act. Both the Board and the High Court held that the Fourteenth Schedule Form naming the Procuring Entity as respondent is at variance with section 170. The Court affirmed that regulations must give meaning to statutory provisions and not vice versa, and that express provisions of an Act cannot be amended through regulations.
Whether the Board acted fairly and reasonably, and whether the appellant's legitimate expectation was breached
The Board acted lawfully and fairly; the appellant had no legitimate expectation that an incompetent Request for Review would be heard on the merits.
The Court held that legitimate expectation protects expectations grounded in law, not mere wishes. Under the Proto Energy and Communications Commission of Kenya principles, there can be no legitimate expectation against clear statutory provisions. The Board's prior indulgence of non-compliant Requests for Review did not oblige it to continue breaching section 170. The appellant was entitled only to decisions made in accordance with the Act.
Whether the appellant's rights to fair hearing and fair administrative action were breached
No. The Board afforded the appellant a full opportunity to be heard on the preliminary objection and the Request for Review.
The Court reviewed the Board's process: receipt of the Request, notification of parties, receipt of pleadings and responses, hearing of submissions, and determination under regulation 209. The variance between the Act and the Regulations had been raised in the proceedings and the appellant's counsel had responded to it, so the complaint that the issue was decided without hearing was unfounded.
Legal principles established
#- The parties to a review before the Public Procurement Administrative Review Board are mandatorily prescribed by section 170 of the PPADA, and omitting the Accounting Officer of the Procuring Entity renders a Request for Review incompetent and incapable of being cured by amendment.
- Subsidiary legislation cannot override the provisions of the parent Act; where the prescribed Form in the Regulations conflicts with the Act, the Act prevails.
- A jurisdictional challenge may be raised at any stage of the proceedings, including in final submissions, and a procedural time bar in subsidiary legislation cannot defeat it.
- There can be no legitimate expectation against the clear provisions of a statute; a decision-maker cannot be required to act contrary to mandatory statutory provisions to meet a party's expectation.
- A tribunal's own previous departures from mandatory statutory provisions do not justify continued breaches in favour of later applicants.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Judicial Review Application No. E037 of 2024
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution over the High Court's judicial review decision (not expressly cited in the judgment)
Relief refused
#The appellant's appeal against the High Court's dismissal of its judicial review application, including the contention that failure to name the Accounting Officer was a curable defect and that the Board breached legitimate expectation and fair hearing rights
Failure to name the Accounting Officer of the Procuring Entity in the Request for Review was a fatal, non-curable breach of the mandatory section 170 of the Act; the Board acted lawfully and fairly
Costs
The appeal is dismissed with costs to the 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.
Our considered and respectful view is that the appeal fails and is hereby dismissed with costs to the respondents. Orders accordingly.
Our reading of sections 168 and 170 of the Act, regulation 205(1) of the Regulations and section 31 of Cap. 2, as well as the afore-cited judicial authorities, leaves no room for any doubt that the appellant's failure to comply with the mandatory provisions of section 170 of the Act and name the 2nd respondent's Accounting Officer in its Request for Review was fatal and rendered its Request incompetent.
We hasten to observe that jurisdictional challenges may be raised at any stage in the proceedings, including in final submissions, even though it is generally considered best practice to raise them earlier in the proceedings
There cannot be legitimate expectation against the clear provisions of a statute.
When a statute directs in express terms who ought to be parties, it is not open to a person bringing review proceedings to pick and choose, or to belittle a failure to comply.
the 1st respondent's previous failure to adhere to the mandatory provisions of section 170 of the Act does not justify continued breaches of clear provisions of the law to please errant applicants for Review.
Issues in the judgment
#The judgment does not state the appeal number or neutral citation of this Court of Appeal appeal; the coram appears only in the certification block and no judge is identified as author of the single judgment.
The judgment alternates between two spellings of the same successful bidder/appellant name and of the Oyondi case name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keller Kustoms Kenya Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E001 of 2025) [2025] KECA 243 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/243/eng@2025-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.