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Court of AppealDismissedCivil Application E001 of 2025 (ruling on Notice of Motion dated 28th February 2025 in Civil Appeal E001 of 2025)

Keller Customs Kenya Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal (Application) E001 of 2025) [2026] KECA 237 (KLR)

Court of Appeal of Kenya
13 February 2026
4,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to block a KPA tender award and declined to certify a Supreme Court appeal, confirming it loses power to grant relief after final judgment.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Murgor and Nyamweya JJA) delivered on 13th February 2026 on a Notice of Motion dated 28th February 2025 by Keller's Kustoms Kenya Limited, the unsuccessful appellant in Civil Appeal E001 of 2025 (judgment delivered 17th February 2025 by Murgor, Laibuta and Ngenye JJA). The application sought two prayers: an injunction restraining implementation of the award of KPA Tender no. KPA/284/2023-24/LP- (boat and minibus transport services for the Port of Lamu) and the signing, execution or performance of contracts arising from it, pending an intended appeal to the Supreme Court; and leave/certification for that appeal under Article 163(4) of the Constitution. The Court declined both. On the injunction, it held that upon delivery of its final judgment the Court became functus officio: sections 3A and 3B of the Appellate Jurisdiction Act cannot extend its jurisdiction, and Rule 5(2)(b) of the Court of Appeal Rules applies only to interlocutory matters pending before final judgment, leaving only certification under Article 163(4). On certification, applying the Supreme Court's Steyn criteria, the Court found the proposed issues - concerning the Fourteenth Schedule form naming the procuring entity rather than the accounting officer, and the Board's jurisdiction to entertain an out-of-time preliminary objection - were new issues never pleaded or determined below, raised no substantial point of law of general public importance, and merely clothed the Applicant's dissatisfaction in the language of public interest. The application was dismissed with costs to the 1st and 2nd Respondents.

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 has jurisdiction to grant an injunction pending an intended appeal to the Supreme Court after delivering its final judgment in the appeal
  2. 2.Whether the intended appeal to the Supreme Court raises matters of general public importance warranting certification and leave to appeal under Article 163(4) of the Constitution

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to grant an injunction pending an intended appeal to the Supreme Court after it has delivered its final judgment

Holding

It does not. The Court becomes functus officio upon delivery of final judgment, and neither the inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act nor Rule 5(2)(b) of the Court of Appeal Rules authorises post-judgment interlocutory relief; only certification under Article 163(4) remains.

Reasoning

The Court relied on its prior decisions in Mukesh Kumar Kantilal Patel v Charles Langat and Dickson Muricho Muriuki v Timothy Kagondu Muriuki, holding that Rule 5(2)(b) relief applies strictly to matters yet to be heard and determined with finality. The functus officio principle, grounded in public policy favouring finality of proceedings, prevents the Court from revisiting final orders merely because a party intends to appeal to the Supreme Court. Inherent jurisdiction cannot extend jurisdiction beyond the constitutional or statutory mandate.

p. 3
02

Whether the intended appeal raises matters of general public importance warranting certification under Article 163(4) of the Constitution

Holding

It does not. The issues regarding the Board's jurisdiction to declare the Fourteenth Schedule form at variance with section 170 of the Public Procurement and Asset Disposal Act are new issues never pleaded or determined below, and the remaining issues relate to a purely private procurement dispute.

Reasoning

Applying the Steyn criteria, the Court found the Applicant identified no uncertainty in the law, no contradictory precedents, and no substantial novel point of law arising from the impugned judgment. The Applicant provided no evidence of similarly affected litigants. The grievances concerned the specific procurement and review procedures in a private tender dispute, so the intended appeal did not transcend the parties' circumstances; the Applicant was merely seeking to relitigate its losing position.

p. 7

Legal principles established

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  • The inherent jurisdiction of the Court of Appeal under sections 3A and 3B of the Appellate Jurisdiction Act cannot be used to extend the Court's jurisdiction beyond its constitutional or statutory mandate.
  • Once the Court of Appeal has delivered its final judgment in an appeal, it becomes functus officio and has no jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules to grant a stay of execution or injunction pending an intended appeal to the Supreme Court; its only remaining function in relation to a further appeal is certification under Article 163(4) of the Constitution.
  • Rule 5(2)(b) of the Court of Appeal Rules confers power to hear interlocutory applications pending the hearing and determination of the main appeal, and does not confer power to entertain any application on the merits of a suit after judgment.
  • A matter of general public importance warranting certification under Article 163(4) must transcend the circumstances of the particular case, raise a substantial point of law bearing on the public interest, and arise from issues already judicially determined in the courts below; mere dissatisfaction with the outcome is not a basis for certification.

Court orders

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  1. 1.The Applicant's Notice of Motion application dated 28th February 2025 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd Respondents

The bench

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

majority
majority
majority
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules; Article 163(4) of the Constitution (certification of appeals to the Supreme Court)

Relief refused

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Order of injunction restraining implementation of the award of Tender no. KPA/284/2023-24/LP- and restraining signing, execution or performance of contracts emanating from the award, pending the intended appeal to the Supreme Court

The Court is functus officio after delivering final judgment; sections 3A and 3B of the Appellate Jurisdiction Act cannot extend the Court's jurisdiction, and Rule 5(2)(b) applies only to matters pending before final judgment.

p. 4

Leave/certification to appeal to the Supreme Court under Article 163(4) of the Constitution

The issues raised are new issues not raised or determined below, do not raise substantial questions of law of general public importance, and the Applicant is merely aggrieved by the outcome and seeking to relitigate.

p. 8

Costs

The application is dismissed with costs to the 1st and 2nd 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.

once this Court has pronounced the final judgment, it is functus oficio and must down its tools. In the absence of statutory authority, the principle of functus oficio prevents this Court from re-opening a case where a final decision and judgment has been made.
p. 3Functus officio after final judgment of the Court of Appeal
the inherent jurisdiction granted to this Court under sections 3A and 3B of the Appellate Jurisdiction Act cannot be used to extend the court's jurisdiction beyond its constitutional or statutory mandate.
p. 3Limits of inherent jurisdiction
Consequently, we have no jurisdiction to grant any injunction pending the applicant's intended appeal to the Supreme Court.
p. 4No post-judgment injunction pending Supreme Court appeal
the issues raised by the Applicant in our view do not qualify as substantial questions of law or matters of general public importance, nor are they capable of transcending the dispute between the parties in this particular case.
p. 8Certification threshold under Article 163(4)
The Applicant's Notice of Motion application of dated 28th February 2025 is accordingly found not to have merit, and is dismissed with costs to the 1st and 2nd Respondents.
p. 8Final orders and costs

Issues in the judgment

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material

Contradiction on the 2nd Respondent's participation: the ruling first records that the 2nd Respondent filed a replying affidavit and submissions, then states it filed no response, and later attributes submissions to the 2nd Respondent's counsel.

minor

The coram of the ruling (Kairu, Murgor, Nyamweya JJA) differs from the panel that decided the underlying appeal (Murgor, Laibuta & Ngenye JJA), which the Court cites as a judgment of 'this Court'.

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, "Keller Customs Kenya Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal (Application) E001 of 2025) [2026] KECA 237 (KLR)", Case Analysis (2026). Civil Application E001 of 2025 (ruling on Notice of Motion dated 28th February 2025 in Civil Appeal E001 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/237/eng@2026-02-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.