Amazon Transporters Limited v Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) (Civil Appeal E295 of 2025) [2025] KECA 984 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that procurement complaints to the regulator do not stop the 14-day clock for filing a Request for Review, so tardy bidders lose their challenge.
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 appeal was competent given the interested party's objection that the Notice of Appeal did not comply with rule 31 of the Fair Administrative Action Rules, 2024
- 2.Whether the 1st respondent had jurisdiction to hear and determine Request for Review No. 5 of 2025 pursuant to section 167(1) of the Public Procurement and Asset Disposal Act
- 3.Whether the 1st respondent had jurisdiction to hear and determine the Request for Review pursuant to section 167(4)(c) of the Public Procurement and Asset Disposal Act
- 4.Whether section 39 of the Public Procurement and Asset Disposal Act ousted the jurisdiction of the 1st respondent to hear and determine the Request for Review
Key legal issues
#Timeliness of the Request for Review under section 167(1) of the Public Procurement and Asset Disposal Act
The Request for Review filed on 27th January 2025 was out of time; the appellant knew of the alleged NSSF compliance breach by 1st August 2024 and had 14 days from 23rd July 2024 or from 1st August 2024 to file. Its complaint to the Authority did not freeze the statutory timeline.
Section 167(1) allows a review within 14 days of notification of award or the date of occurrence of the alleged breach. Section 174 makes the review right additional to other remedies, so pursuing a complaint to the Authority does not suspend the limitation period. The appellant's own complaint to the Authority on 1st August 2024 showed it had knowledge of the breach. The later notification of regret did not create a new cause of action since it rested on the same NSSF grounds.
Whether the notification of regret of 13th/15th January 2025 constituted a new cause of action
No new cause of action arose; where the grounds of the Request for Review are the very same as those in the earlier complaint to the Authority, no fresh review can be lodged.
The court accepted that a decision pursuant to Authority directions revealing fresh violations could ground a new review, but here the grounds (NSSF compliance certificate authenticity) were identical to the earlier complaint. Multiple and endless challenges would defeat the constitutional procurement principles in Article 227 and the objective of expeditious public procurement.
Ouster of Review Board jurisdiction under section 167(4)(c) where a contract has been signed
The 1st respondent correctly investigated compliance with section 135 before finding itself divested of jurisdiction, and the High Court did not err in affirming that finding.
Relying on its own decision in the Four M Insurance Brokers case, the court held that section 167(4)(c) ousts jurisdiction only where the contract was signed in accordance with section 135, requiring a preliminary inquiry. Here the contract was signed on 14th August 2024 within the tender validity period. The appellant's challenges to the contract's validity were the very issues that should have been raised in a timely Request for Review and could not be resurrected at that stage.
Whether section 39 of the Act ousted the Review Board's jurisdiction
The appellant's grievance was with the procuring entity's conduct under the Authority's directive, not with a decision of the Authority, so the section 39 issue did not arise; in any event nothing turned on it.
The court agreed with the appellant that the question of challenging the Authority's decision did not arise, since the appellant was not aggrieved by the Authority's decision. However, given the findings on time-bar and jurisdictional ouster, the issue was moot.
Competency of the appeal - compliance with rule 31 of the Fair Administrative Action Rules, 2024
The omission of the rule 31 material from the Notice of Appeal was not fatal because it was cured by the Memorandum of Appeal filed the following day, within the period prescribed for filing the Notice of Appeal.
The court accepted that appeals from proceedings initiated under the Fair Administrative Action Rules must comply with rule 31, since a special Act is an exception to the general Act. However, striking out is reserved for plain and clear cases, and the court must ascertain whether there was material derogation from the object of the rule, which was speedy determination. Here the memorandum supplied the omitted grounds and reliefs within time.
Legal principles established
#- Pursuing a complaint with the Public Procurement Regulatory Authority does not freeze the 14-day statutory time limit for filing a Request for Review under section 167(1) of the Public Procurement and Asset Disposal Act.
- Where the grounds of a Request for Review are the same grounds as an earlier complaint to the Authority, there is no new cause of action and no fresh 14-day period arises.
- Ouster of the Review Board's jurisdiction under section 167(4)(c) requires that the contract was signed in accordance with section 135 of the Act, and the Board and the High Court in judicial review are enjoined to investigate compliance with section 135 before declining jurisdiction.
- A Notice of Appeal in proceedings initiated under the Fair Administrative Action Rules must comply with rule 31 of those Rules, but a curable omission is not fatal where the omitted material is contained in a Memorandum of Appeal filed within the prescribed period.
- Special statutes and their procedural rules are regarded as exceptions to general legislation unless otherwise expressly stated.
Court orders
#- 1.The objection to the competency of the appeal is dismissed
- 2.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Judicial Review Miscellaneous Application No. E025 of 2025
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution over appeals from the High Court; appeal under section 9(5) of the Fair Administrative Action Act read with rule 31 of the Fair Administrative Action Rules, 2024
Relief refused
#Setting aside of the High Court judgment dismissing the judicial review application
The Request for Review was filed out of time under section 167(1) and the contract was signed in accordance with section 135, ousting the Review Board's jurisdiction under section 167(4)(c)
Remittal of the Request for Review to the 1st respondent for reconsideration on the merits
The Review Board had no jurisdiction to entertain the Request for Review, which was time-barred and barred by execution of the contract
Costs
The appeal was dismissed with costs.
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.
A party who complains to the Authority without making Request for Review to the Review Board takes the risk that the time limited for requesting for review may run out before the complaint is resolved.
where the grounds upon which the Request for Review is made are the very same grounds upon which the complaint to the Authority was made, there would be no new cause of action to warrant the filing of a fresh Request for Review
For section 167(4)(c) to be successfully invoked in order to divest the 1st respondent of its jurisdiction to entertain a Request for Review, the contract in question must have been entered into in accordance with section 135 of the Act
we find that the omission to incorporate in the Notice of Appeal the material set out in rule 31 of the Fair Administrative Action Rules was not fatal as the omission was cured by the filing of the Memorandum of Appeal incorporating the omitted material and filed within the period prescribed for the filing of the Notice of Appeal.
Consequently, this appeal fails and is dismissed with costs.
Issues in the judgment
#The judgment contains several internal date inconsistencies in the record narration, e.g. the Authority's letter is described once as dated 21st November 2025 and elsewhere the notification received on 15th January 2025 is written as '15th January 20925'; contract date also appears once as '14th August 2924'.
The quoted passage from Four M Insurance Brokers contains an apparent internal error referring to 'Article 135' instead of 'section 135' of the Act.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Amazon Transporters Limited v Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) (Civil Appeal E295 of 2025) [2025] KECA 984 (KLR)", Case Analysis (2025). Court of Appeal at Nairobi (Civil Appeal from Judicial Review Miscellaneous Application No. E025 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/984/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.